• Assange Extradition Raises Questions

    June 12, 2024 // 7 Comments »

    A British court ruled Wikileaks founder Julian Assange can appeal his extradition to the U.S. How Assange’s case plays out may change both the way Espionage Act cases are defended and the deeper relationship among the Act, the 1A, and a free press.

    The U.S. charged Assange multiple times under the 1917 Espionage Act for an alleged conspiracy to take possession of and publish national defense information. Had the British court ruled in the U.S.’ favor, Assange would have exhausted all legal avenues in the UK. Instead, he can now fight the extradition to the U.S. from the relative safety of Britain.

    The allegations stem from 2010 when WikiLeaks released half a million classified documents focused on Iraq and Afghanistan that were leaked to the site by Chelsea Manning, an Army intel analyst. Included in the leak was video from Iraq showing American helicopters gunning down Iraqi civilians, later dramatized by the film Incident in New Baghdad. Assange’s legal team argues the case is a politically motivated form of state retaliation for embarrassing the United States.

    Following the charges by the U.S. government, Assange was granted asylum for seven years in the Ecuadorian embassy in London. Made to leave, Assange was then arrested by British authorities for skipping bail, and has spent the last five years in a dank British prison fighting extradition to the United States, His spouse calls it “punishment by process.”

    In February, Assange’s lawyers submitted grounds for a possible appeal. The High Court in response directed the U.S. government provide assurances: a) that Assange would not face the death penalty; b) that he would be treated no differently than a U.S. citizen; and c) that he would be protected under the First Amendment. The U.S. government provided such assurances in a letter. The British court was unconvinced, and will allow Assange to appeal the extradition request.

    Of the three conditions, the key issue is whether or not Julian Assange can raise an effective First Amendment defense against the Espionage Act. Could Assange claim, for example, that his right to publish the leaked materials was protected as a publisher and journalist under the 1A in the public interest?

    The Justice Department previously told a British court the First Amendment doesn’t apply to anyone “in relation to publication of illegally obtained national defense information giving the names of innocent sources to their grave and imminent risk of harm.” Use of a 1A public interest defense by Chelsea Manning was blocked and her attempts to speak to the American people directly were stymied by seeing her entire trial classified.

    “The short answer is that being able to ‘raise’ a defense is different than being able to ‘rely’ on one,” said former Assange attorney Jesselyn Radack, who heads the Whistleblower and Source Protection Program (WHISPeR, at Expose Facts, speaking with TAC. “In Espionage Act cases, the government has literally done motions to preclude the use of the words ‘First Amendment.’ I can easily see that happening here, as well as motions to preclude 1A related words like ‘journalist’ and ‘publisher.’ Assange can raise the First Amendment. He can raise a herd of goats if he wants. The better question is whether Assange would be allowed a 1A defense.”

    Under such circumstances any British court willing to accept a USG assurance Assange would have First Amendment rights in any practical sense is being played as a fool.

    But the Assange case begs a bigger question the British court might ask if it was concerned about fairness to Assange: why is it only him, and not outlets like the New York Times, which also published leaked material, on trial? Why not also the Guardian, the Washington Post, NBC News?

     

    (JUDE: This next part draws from an earlier piece)

     

    Under the Espionage Act, Assange would be prohibited from offering a 1A-based public interest defense; his unauthorized possession of classified materials alone would ensure a guilty verdict, in that the Act does not distinguish between possession for journalistic purposes, and possession say with the intent to hand over secrets to Russian intelligence. Assange, as with the others prosecuted under the Espionage Act, would be found guilty and simultaneously be denied the chance to defend himself based on a free speech defense.

    Assange poses a dilemma for the United States in its ongoing muscle-tussle in balancing the power of the government to protect classified information, the guarantee of a free press in the First Amendment, and the broader concept of the need for an informed populace to challenge their government and make this democracy work in practice.

    At what point does the need for the people to know something outweigh any laws allowing the government to keep it from view? If punishment appears necessary, should the leaker be punished, should the journalist who publishes be punished, or should neither, or both? The questions become acute in the digital age, where physical documents no longer need to be copied one-by-one, and where publishing is far removed from the traditions, obstacles, safeguards, backdoor pressures, and restraint of traditional journalism.

    A complex history precedes Assange. In 1971 Daniel Ellsberg leaked the classified Pentagon Papers to the New York Times. The risks to the journalists were huge — no one had ever published such classified documents before, and the senior staff at the Times feared they would go to jail under the Espionage Act.

    Despite such pessimism, the Supreme Court handed down a landmark victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ellsberg however was charged under the Espionage Act. His case was ultimately dismissed for gross governmental misconduct and illegal evidence gathering without the underlying issues being addressed, most prominently Ellsberg’s defense he was morally compelled to leak the classified information to the Times.

    But looking at the Times case through the lens of Wikileaks, University of Texas law professor Steve Vladeck is careful to point out “Although the First Amendment separately protects the freedom of speech and the freedom of the press… 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.”

    In its simplest form, the Supreme Court left the door open for the government to prosecute both the leaker who takes the documents (by dismissing the case without setting a precedent) and the journalists who publish them (by focusing narrowly on prohibiting the government from exercising prior restraint.)

    What has happened since has been little more than a delicate dance around the 500 pound gorilla loose in the halls of democracy. The government aggressively prosecuted whistleblowers under the Espionage Act while choosing not to prosecute journalists for publishing what the whistleblowers hand over to them. Assange’s case stands as an outlier.

    Did Assange commit journalism? He wrote nothing alongside documents on Wikileaks, did no curating or culling, and redacted little information. Publishing in his case consisted simply uploading what had been supplied to him. It would be easy for the government to frame a case against Assange that set precedent he is not entitled to any First Amendment protections — clicking Upload isn’t publishing and Assange isn’t a journalist they could say. The simplest interpretation of the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization, would then apply. Guilty, the same as almost all of the leakers and other canaries in the D.C. coal mine.

    Yet like the Times, Wikileaks sidestepped the restraints of traditional journalism to bring with immediacy the raw material of history to the people. That is the root of an informed public, through a set of tools never before available until the Internet and Julian Assange created them.

    The British court needs to carefully weigh any faux U.S. promises of 1A rights for Assange, and ask itself instead: is he being singled out for punishment, criminalizing journalism? President Joe Biden is already considering an Australian government request to drop Julian Assange’s charges. The British court should stay the extradition and ultimately release Assange for doing nothing but what the New York Times and others have done before him.

     

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Post-Constitution America

    Why Does the NYT Now Support Assange?

    December 14, 2022 // 4 Comments »

    Why did The New York Times, The Guardian, Le Monde, Der Speigel, and El Pais demand that Department of Justice drop most charges against Julian Assange?

    The news organizations recently called on the United States government to drop most of its charges (the charges related to hacking directly with then-Army intel specialist Chelsea Manning are unmentioned) against WikiLeaks founder Julian Assange for publishing classified information. In a letter the media outlets said the prosecution under the Espionage Act “sets a dangerous precedent” that threatened to undermine the First Amendment and global press freedoms broadly. “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists. If that work is criminalized, our public discourse and our democracies are made significantly weaker. Holding governments accountable is part of the core mission of a free press in a democracy.”

    Demanding leniency for Assange, who has been fighting extradition from Britain to the U.S. since his arrest there in 2019, seems a noble act. But a complex history precedes Assange.

    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. 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 published secrets as they found them.

    But looking at the Times case through the lens of Wikileaks, 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 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 2022 Assange letter from the New York Times, et al, is as self-serving (begging for the status quo no matter what happens to Assange the hacker) as it is noble.

    Allowing the media to publish is not the same as allowing unfettered access to government secrets. On July 30, 1778, the Continental Congress created the first whistleblower protection law, stating “that it is the duty of all persons in the service of the United States to give the earliest information to Congress or other proper authority of any misconduct, frauds, or misdemeanors committed by any officers or persons in the service of these states.” The Executive has since aggressively used the Espionage Act and other laws to prosecute whistleblowers who leak to journalists.

    The closest a 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 there existed a gentlemen’s agreement under the First Amendment for “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. 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 stepped away from the fight.

    Those same issues now hover over Julian Assange. Should the government decide to prosecute him, 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. The elements of fact checking, confirming, curating, redacting, and providing context around classified information were all present in the New York Times case with the Pentagon Papers; they are also present with American citizens Risen and Greenwald. Definitions and precedents may be forming.

    Assange isn’t an American. He is unpopular, drawn now into America’s 21st-century Red Scare for revealing the DNC emails, supposedly hacked by Russia. He has written nothing alongside the documents on Wikileaks, has done little curating or culling, and has redacted little. Publishing for him consists of uploading what has been supplied. The government could argue that Assange is not entitled to First Amendment protections simply by claiming that a mouse click isn’t publishing and Assange isn’t a journalist. The simplest interpretation 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.

    The 2022 media letter regarding Assange begs the question of why now. On paper, Assange’s situation is unchanged for months. He sits in dank Belmarsh prison in Britain fighting his extradition to the U.S.; nothing new there. On the American side Attorney General Merrick Garland has sought to limit ways the Justice Department can make life harder on journalists. In October, he issued new regulations banning the use of subpoenas, warrants or court orders to seize reporters’ communications records or demand their notes or testimony in an effort to uncover confidential sources in leak investigations. Could it be deal has been made for the U.S. to drop all charges against Assange absent working with Manning on the hack itself? Or is lapdog Britain simply tired of carrying water for the U.S. and demanding, politely, action (hence the Australian government support for media letter?) Has Assange’s health taken a significant turn for the worse?

    It may just be that Assange is an easy target for both sides. With him the government is able to mold the legal precedents with such certainty that, where they backed away from other cases in their long-running war of attrition against free speech and the press, this one they may seize. It could be as simple as the self-serving media letter of 2022 is meant to forestall that.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Post-Constitution America

    Julian Assange Will Die Alongside Your 1st Amendment Rights

    April 11, 2019 // 26 Comments »

    (Reprinted from December 2018 following Assange’s arrest in London April 11, 2019)

    Accidentally disclosed information confirms the U.S. is actively planning to prosecute Julian Assange. What happens to Assange will almost certainly change what can be lawfully published in our democracy. This threat to our freedoms is being largely ignored because the Assange, once a progressive journalist, is now regarded as a hero-turned-zero. At stake? The ability of all journalists to inform the public of things the government specifically wants to withhold.

    A clerical error revealed the Justice Department secretly has filed criminal charges against Assange. Court papers in what appears to be an unrelated case used cut-and-pasted language from documents prepared previously against Assange.

    Though the new information makes clear prosecution is planned if Assange can be delivered to American custody, no further details are available. Assange is under scrutiny at a minimum for unauthorized possession of classified material going back to at least 2010, when Wikileaks burst on to the international stage with evidence of American war crimes in Iraq, and exposed years worth of classified State Department diplomatic cables. More recently, Assange has been accused of trying to manipulate the 2016 U.S. presidential election with his release of emails from the Democratic National Committee server. The emails, some believe, came to Wikileaks via hackers working for the Russian government (Assange denies this) and are deeply tied to the claims of collusion between the Trump campaign and Moscow otherwise known as “Russiagate.” Less publicized in the media but of critical concern inside the U.S. government is Wikileaks’ publication of the so-called Vault 7 materials, CIA hacking and malware tools, which revealed American technical intelligence skills and methods. Assange has hinted on at least one occasion he may have “Vault 8” materials as yet unreleased.

    When Assange is prosecuted, on trial with him will be a key question concerning the First Amendment: do journalists actually enjoy special protection against national security charges? Can they publish classified documents because the national interest creates a 1A shield to do so? Or only when the government allows it?

    Under the current “rules,” you get caught handing me a SECRET document, you go to jail. Meanwhile, I publish to millions, including any Russian intelligence officers with Internet access, and end up on Kimmel next to Taylor Swift. I whisper “I’m a freedom fighter, you know” into Taylor’s moist ear and she sighs.

    Ask Edward Snowden, in dark exile in Moscow. Talk to Chelsea Manning, who spent years in Leavenworth while journalists for the New York Times and the Washington Post won accolades for the stories they wrote based on the documents she leaked. See how many stories today cite sources and reports, almost all of which are based on leaked classified information, stuff the government doesn’t want published yet accepts as part of the way journalism and the 1A work.

    Yet despite widespread practice, there is no law rendering journalists immune from the same national security charges their sources go to jail for violating. There is no explicit protection against espionage charges written between the lines of the First Amendment. It is all based on at best an unspoken agreement to not prosecute journalists for revealing classified data, and it appears it is about to be thrown away to nail Julian Assange.

    In 1971 Daniel Ellsberg leaked the Pentagon Papers, a classified history of the Vietnam War, to the New York Times. Reporters at the Times feared they would go to jail under the Espionage Act but published anyway, even as the Washington Post wimped out. The Nixon administration quickly found a court to order the Times to cease publication after initial excerpts were printed, the first time in U.S. history a federal judge censored a newspaper.

    The Supreme Court then handed down New York Times Company v. United States, a victory for the First Amendment which allowed the Papers to be published, but an opinion which sidestepped the larger question about whether the 1A protects journalists publishing classified in favor of simply affirming the government couldn’t censor the news in advance. The Court left the door open for the government to prosecute both the leakers (by dismissing Ellsberg’s leaker case on technical grounds and ignoring his public interest defense) and the journalists who publish them (by focusing narrowly on prior restraint.) The Justices avoided saying the 1A offered a specific shield to journalists in matters of national security.

    The Pentagon Papers case has governed everything about national security journalism from that day until the moment the U.S. government finally gets Julian Assange into an American courtroom.

    On the source side, the Obama administration was especially virulent in prosecuting leakers. Trump continued the policy by throwing the book at Reality Winner. Both administrations made clear there was nothing to distinguish between taking classified documents to inform the public and taking them say with the intent to hand over secrets to the Chinese. On the other side of the equation, the journalists, the government (including, to date, Trump despite all the noise about attacking the press) has chosen not to prosecute journalists for publishing what leakers hand over to them.

    The closest step toward throwing a journalist in jail over classified information came in 2014, when Obama Attorney General Eric Holder permitted subpoenaing New York Times reporter James Risen regarding a former CIA employee. After much legal muscle tussle, the Supreme Court turned down Risen’s appeal, siding with the government in a confrontation between a national security prosecution and infringement of press freedom. The Supreme Court refused to consider whether the First Amendment includes an unwritten “reporter’s privilege” in the free press clause. The Court instead upheld existing decisions finding the Constitution does not give journalists special protections. The door was w-a-y open to throwing Risen in jail.

    But instead of becoming the first president to jail a journalist for what he published, Obama punted. Happy with the decision affirming they could have prosecuted Risen, with no explanation prosecutors asked the U.S. District Court to simply leave Risen alone. Risen’s alleged source went to jail instead for leaking classified. The unspoken rules stayed intact.

    Unspoken rules are useful — they can be read to mean one thing when dealing with the chummy MSM who understands where the unspoken lines are even if they need the occasional brush back pitch like with Risen, and another when the desire is to deep-six a trouble-maker like Assange. Julian Assange poked the Deep State — he exposed the military as war criminals in Iraq (ironically in part for gunning down two Reuters journalists), the State Department as hypocrites, laid bare the CIA’s global hacking games in the Vault 7 disclosures, and showed everyone the Democratic primaries were rigged. None of those stories would have come to light under the MSM alone. And if Assange does know something about Russiagate (did he meet with Manafort?!?), what better place to silence him than a SuperMax.

    The government is likely to cite the clear precedent from the Obama years it damn well can prosecute journalists for revealing classified information, and keep the established media happy by offering enough thin exceptions (natsec journalism groupies have already started making lists) to appear to isolate Assange’s crucifixion from setting broad precedent. Say, start with the fact that he wasn’t covered by the 1A outside the U.S., that his sources were Russian hackers seeking to harm the U.S. instead of misguided chaps like Ellsberg and Manning. Assange had no national interest in mind, no sincere desire to inform the public. He, a foreigner no less, wanted to influence the 2016 election, maybe in collusion!

    Shamefully, those stuck in journalism’s cheap seats are unlikely to side with Assange, even though they wrote stories off what he published on Wikileaks. They’ll drift along with the government’s nod and wink this is all a one-off against Julian, and those who play by the government’s unspoken rules are still safe.

    They’ll self-righteously proclaim Assange going to jail a sad but unfortunately necessary thing, claiming he just took things too far dealing with the Russkies, ignoring while the door to prosecute a journalist for national security has always been carefully left open by administrations dating back to Nixon, it is only under their watch that it may be slammed on the hands of one of their own whom they refuse to see, now, for their own misguided self-preservation, as a journalist. The Daily Beast’s take on all this, for example, is headlined a TMZ-esque “Unkempt, Heavily Bearded Julian Assange No Longer Has Embassy Cat For Company.”

    They will miss where previous cases avoided delineating the precise balancing point between the government’s need to protect information, the right to expose information, and the media’s right to publish it, an Assange prosecution will indeed create a new precedents, weapons for the future for clever prosecutors. It will be one of those turning points journalists someday working under new press restrictions will cite when remembering the good old days.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Post-Constitution America

    Why I Support Julian Assange (And Why You Should Too)

    July 19, 2018 // 15 Comments »



    This weekend I joined a number of people in an online vigil in support of Wikileaks’ Julian Assange.

    People ask why I did it; Assange is at best imperfect in who he is and what he does. But supporting him transcends him, because the battle over the prosecution of Assange is where the future of free speech and a free press will be decided. Even if you think Assange doesn’t matter, those things do.


    Assange is challenging to even his staunchest supporters. In 2010 he was a hero to opponents of the wars in Iraq and Afghanistan. Others called him an enemy of the state for working with whistleblower Chelsea Manning. Now most of Assange’s former supporters see him as a enemy of the state and Putin tool for releasing the Democratic National Committee emails. Even in the face of dismissed charges of sexual assault, Assange is a #MeToo villain. He a traitor who hides from justice inside the Ecuadorian embassy in London, or a spy, or some web-made Frankenstein with elements of all of the above. And while I’ve never met Assange, I’ve spoken to multiple people who know him well, and the words generous, warm, or personable rarely are included in their descriptions. But none of that really matters.

    Support is due because Assange ends up being the guy standing at a crossroads in the history of our freedoms – specifically, at what point does the need for the people to know outweigh laws allowing the government to keep information from view? The question isn’t new, but becomes acute in the digital age, where physical documents no longer need to be copied one-by-one, can be acquired by hackers from the other side of the world, and where publishing is far removed from the traditions, obstacles, safeguards, and often-dangerous self-restraint of traditional journalism.


    A complex history precedes Assange. 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. A federal court ordered the Times to cease publication after an initial flurry of excerpts were printed, the first time in U.S. history a federal judge censored a newspaper. In the end the Supreme Court handed down a victory for the First Amendment in New York Times Company v. United States and the Times won the Pulitzer Prize.

    But looking at the Times case through the lens of Wikileaks, 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 to prosecute journalists who publish classified documents by focusing narrowly on prohibiting the government from exercising prior restraint. Politics and public opinion, not law, has kept the government exercising discretion in not prosecuting journalists, a delicate dance around this 800 pound gorilla loose in the halls of democracy. The government meanwhile has aggressively used the Espionage Act to prosecute the whistleblowers who leaked to those same journalists.


    The closest things came to throwing a journalist in jail was in 2014, when the Obama administration subpoenaed New York Times reporter James Risen. The government accused former CIA officer Jeffrey Sterling of passing classified information to Risen, information it said appeared in his book State of War. After a lower court ordered Risen under threat of jail to testify and disclose his source, the Supreme Court turned down Risen’s 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 there existed a gentlemen’s agreement under the First Amendment for “reporter’s privilege,” an undocumented protection beneath the handful of words in the free press clause.

    In the end the government, fearful of setting the wrong precedent, punted on Risen. Waving the flag over a messy situation, then-Attorney General Eric Holder announced “no reporter who is doing his job is going to go to jail.” Risen wasn’t called to testify and was not punished for publishing classified material, even as the alleged leaker, Jeffrey Sterling, disappeared into jail. To avoid the chance of a clear precedent that might have granted some form of reporter’s privilege under the Constitution, the government stepped away from the fight. The key issues now wait for Julian Assange.


    Should the government prosecute Julian Assange, there are complex legal questions to be answered about who is a journalist and what is publishing in the digital world. There is no debate over whether James Risen is a journalist, and over whether a book is publishing. Glenn Greenwald has written about and placed online classified documents given to him by Edward Snowden, and has never been challenged by the government as a journalist or publisher. Both men enjoy popular support, and work for established media. The elements of fact checking, confirming, curating, redacting, and in writing context around the classified information, were all present in the New York Times’ case with the Pentagon Papers, and are present with American citizens Risen and Greenwald. Definitions and precedent may be forming.

    Assange is an easier target. The government has the chance to mold the legal precedents with such certainty that they may seize this case where they have backed away from others in the long-running war of attrition against free speech and the press.

    Assange isn’t an American. He is unpopular. He has written nothing alongside the millions of documents on Wikileaks, has done no curating or culling, and has redacted little information. Publishing in his case consists of simply uploading what has been supplied to him. It would be easy for the government to frame a case against Assange that set precedent he is not entitled to any First Amendment protections simply by claiming clicking UPLOAD isn’t publishing and Assange isn’t a journalist. The simplest interpretation of the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization, would apply. Guilty, same as the other canaries in the deep mineshaft of Washington, DC before him, no messy balancing questions to be addressed. And with that, a unique form of online journalism would be squashed.


    And that really, really matters. Wikileaks sidesteps the restraints of traditional journalism. Remember in 2004 the New York Times held the story of George W. Bush’s illegal warrantless eavesdropping program until after his reelection. In 2006 the Los Angeles Times suppressed a story on wiretaps of Americans when asked by the NSA. Glenn Greenwald said it plainly: too many journalists work in self-censoring mode, “obsequious journalism.” Meanwhile Assange has made mistakes while broadly showing courage, not restraint, under similar circumstances. The public is better informed because of it.

    Wikileaks’ version of journalism says here are the cables, the memos, and the emails. Others can write about them (and nearly every mainstream media outlet has used Wikileaks to do that, some even while calling Assange a traitor), or you as a citizen can simply read the stuff yourself and make up your own damn mind. That is the root of an informed public, through a set of tools never before available until Assange and Internet created them.

    If Assange becomes the first successful prosecution of a third party, as a journalist or not, under the Espionage Act, the government can turn that precedent into a weapon to attack the media’s role in any national security case. On the other hand, if Assange can leave London for asylum in Ecuador, that will empower new journalists to provide evidence when a government serves its people poorly and has no interest in being held accountable.

    Freedom is never static. It either advances under our pressure, or recedes under theirs. I support Julian Assange.




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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Post-Constitution America

    Julian Assange and the Future of a Free Press (Long Form)

    July 18, 2018 // 4 Comments »



    This weekend I joined a number of people including Dan Ellsberg, John Kiriakou, Scott Horton, and Caitlin Johnstone in a 38 hours online vigil in support of Wikileaks’ Julian Assange. People ask why I did it, because Julian Assange and his Wikileaks organization are at best imperfect in who they are and what they do. But those imperfections are both of interest and do not matter. Supporting him transcends him, because the battle over the prosecution of Assange is where the future of free speech and a free press in the digital age will be decided. Even if you think Assange doesn’t matter, those things do.

    Supporting Julian Assange and Wikileaks is complicated. In 2010 a hero to then-opponents of American imperialism in Iraq and Afghanistan while being labeled by others as an enemy of the state for working with whistleblower Chelsea Manning, today most of Assange’s former supporters from the left see him as a enemy of the state for allegedly working with Vladimir Putin to leak the Democratic National Committee emails. Many who opposed Assange’s work from the right now support him for helping defeat Hillary Clinton. Assange is a traitor who runs from justice, or a journalist, or a hero, or a spy, or some Frankenstein with elements of all of the above. And while I’ve never met Assange, I’ve spoken to multiple people who know him well, and the words generous, warm, or personable rarely are included in their descriptions.

    Assange’s biography is challenging to even his staunchest supporters. After Wikileaks’ release of a half million highly classified documents in 2010, including evidence of war crimes and thousands of State Department internal cables, Assange was accused of sexual assault in Sweden under ambiguous circumstances. He was questioned there, but never charged or arrested, and left for the UK. The Swedes decided to continue their investigation, but instead of exercising options via Interpol to question Assange in the UK, instead insisted their inquiries could only be made on Swedish soil and requested the UK return Assange against his will. The British arrested Assange, though he was released on bail. Fearing the whole thing was a set-up to extradite him to the U.S. via Sweden, Assange jumped bail. Fearing the same faux process would see Britain send him to the U.S., Assange then obtained asylum, and later citizenship, from the Ecuadorian embassy in London. After claiming for years they could never interview him outside of Sweden, the Swedes reversed themselves and interviewed Assange in London in 2016. They soon dropped the charges. Britain meanwhile still plans to arrest Assange for failing to appear in court for an eight year old case that basically no longer exists, and will not assure him safe passage out of the UK. Assange has been living inside the Ecuadorian embassy for over five years.

    Contrary to popular belief, embassies are not the sovereign territory of their owners. However, the 1961 Vienna Convention on Diplomatic Relations codified a custom that has been in place for centuries when it established the “rule of inviolability.” This prohibits local police from entering an embassy for any purpose without the permission of the ambassador. This is why Assange is safe from arrest as long as he stays within the walls of the Ecuadorian embassy, and of course in their good graces.

    The idea of a lengthy stay inside an embassy for asylum is not new. The longest such episode was that of Hungarian Cardinal Jozsef Mindszenty, who spent 15 years inside the American Embassy in Budapest, protected from the Soviet Union. In 1978 Russian Pentecostalists broke into the American Embassy in Moscow, demanding protection from religious persecution. They lived in the embassy basement for five years before a deal sent them to Israel. In 1989, Chinese dissident Fang Li-zhi resided in the American Embassy in Beijing for a year before being allowed to travel to the United States. More recently, in 2012, blind Chinese dissident Chen Guang-cheng spent six days in the American Embassy in Beijing, before then-Secretary of State Hillary Clinton negotiated his safe passage to the U.S. The irony is in all those incidents, the United States was the protector. America today instead looks petty and mean standing alongside Soviet Russia and Communist China in pressing hard against one man aside the broader wave of history.

    Should some process deliver Assange into American custody, he would be charged under the Espionage Act, a 1917 law used aggressively by the Obama administration to prosecute whistleblowers, including Chelsea Manning, and by the Trump administration to prosecute whistleblower Reality Winner. Under the Act, Assange would be prohibited from offering a “public interest” defense; his unauthorized possession of classified materials alone would ensure a guilty verdict, in that the Act does not distinguish between possession for journalistic purposes to inform the public, and possession say with the intent to hand over secrets to Russian intelligence. Assange, as with the others prosecuted under the Espionage Act (Edward Snowden would face similar circumstances on trial in America), would be found guilty and simultaneously be denied the chance to defend himself based on a free speech/public interest defense. The Espionage Act was created long before anyone coined the phrase Catch-22, but it seemed to have that spirit in mind.

    But support for Assange, as for Snowden and other whistleblowers yet unnamed, is due because the stakes go far beyond one person’s rights and freedoms. What happens to Julian Assange will set precedent regarding free speech, freedom of the press, and the publication of classified and suppressed documents in pursuit of an informed public and representative accountability for many years to come.

    The Espionage Act has a sordid history, having once been used against the government’s political opponents. Targets included labor leaders and radicals like Eugene V. Debs, Bill Haywood, Philip Randolph, Victor Berger, John Reed, Max Eastman, and Emma Goldman. Debs, a union leader and socialist candidate for the presidency, was, in fact, sentenced to 10 years in jail for a speech attacking the Espionage Act itself. The Nixon administration infamously (and unsuccessfully) invoked the Act to bar the New York Times from continuing to publish the classified Pentagon Papers.

    Assange poses a dilemma for the United States in its ongoing push-pull in balancing the power of the government to protect classified information (rightly or wrongly), the clear guarantees to free speech and a free press in the First Amendment, and the broader concept of the need for an informed populace to challenge their government and make a peoples’ democracy work in practice.

    At what point does the need for the people to know outweigh any laws allowing the government to keep it from view, such that someone may expose information, despite its classification? If punishment appears necessary, should the thief be punished, should the journalist who publishes it be punished, or should neither, or should both? The questions become acute in the digital age, where physical documents no longer need to be copied one-by-one, and where publishing is far removed from the traditions, obstacles, safeguards, backdoor pressures, self-restraint, and occasional deep subject matter knowledge of traditional journalism.

    A complex and at times ambiguous history precedes Assange. In 1971 Daniel Ellsberg leaked the classified Pentagon Papers to the New York Times. The Papers were a 7,000 page classified history of the Vietnam War prepared under the order of then-Secretary of Defense Robert McNamara. We know now McNamara, while publicly supporting the war, was privately consumed by doubt, and ordered the Papers written as his act of contrition.

    The risks for journalists were huge — no one had ever published such classified documents before, and the senior staff at the Times feared they would go to jail under the Espionage Act. The Nixon administration found a court to order the Times to cease publication after an initial flurry of excerpts were printed in June 1971, the first time in U.S. history a federal judge censored a newspaper. Things got so dicey the Times’ outside counsel actually quit the night before his first appearance in court, claiming the newspaper, his own client, had indeed broken the law.

    Despite such pessimism, the Supreme Court handed down a landmark victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ellsberg was charged under the Espionage Act, though his case was dismissed for gross governmental misconduct and illegal evidence gathering without the underlying issues being addressed, most prominently Ellsberg’s defense he was morally compelled to leak the classified information to the Times, claiming “I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public.”

    But looking at the Times case through the lens of Wikileaks, University of Texas law professor Steve Vladeck is careful to point 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.”

    In its simplest form, the Supreme Court left the door open for the government to prosecute both the leaker who takes the documents (by dismissing the case without setting a precedent) and the journalists who publish them (by focusing narrowly on prohibiting the government from exercising prior restraint.)

    What has happened since has been little more than a very delicate dance around the 800 pound gorilla in the halls of democracy. The government has aggressively prosecuted whistleblowers under the Espionage Act (The Obama administration prosecuted eight whistleblowers under the Espionage Act, more than all previous presidential administrations combined) while choosing not to prosecute journalists for publishing what the whistleblowers hand over to them.

    In one of the first of a series of attempts to make journalists reveal their sources, former Fox News reporter Mike Levine stated the Justice Department persuaded a federal grand jury to subpoena him in January 2011. The demand was that he reveal his sources for a 2009 story about Somali-Americans who were secretly indicted in Minneapolis for joining an al-Qaeda-linked group in Somalia. Levine fought the order and the Department of Justice finally dropped it without comment in April 2012. Call it a failed test case.

    The closest things came to throwing a journalist in jail over classified information was in 2014, when Obama administration Attorney General Eric Holder gave federal prosecutors permission to subpoena New York Times reporter James Risen regarding a former employee of the Central Intelligence Agency. The government accused former CIA officer Jeffrey Sterling of passing classified information to Risen, information it said appeared in his 2006 book State of War. Holder issued the subpoena in line with his July 2013 Department of Justice guidelines on seeking information from the news media. That guidance sought to circumvent a court precedent being set by providing limited, discretionary protection for the media in some civil and criminal proceedings following scandals involving the DOJ seizing phone records and emails of reporters from the Associated Press and Fox News.

    Risen refused to comply with the subpoena, which would have required him to disclose his source. After a lower court ordered Risen under threat of jail time to testify, the Supreme Court in June 2014 turned down Risen’s appeal. That left him facing a choice to reveal his source or go to jail. The Court’s one-line order gave no reasons but effectively sided with the government in a confrontation between securing evidence in a national security prosecution and an intolerable infringement of press freedom. The Supreme Court refused to consider whether there existed a sort of gentlemen’s agreement under the First Amendment for “reporter’s privilege,” an undocumented protection beneath the handful of words in the free press clause. By not making a new decision, the Court effectively upheld the existing decision by a federal appeals court finding that the Constitution does not give journalists special protection from the law.

    That decision was more or less in line with the ambiguous way the Supreme Court has always looked at the unwritten special protections for journalists. The only real ruling on what special rights the media may hold under the free press clause came in 1972, in Branzburg v. Hayes. The Court decided reporters were not shielded from grand jury subpoenas, asserting judges must strike a “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony.” From time to time lower courts have chosen to interpret that phrase as meaning there is indeed some sort of unwritten balancing test concerning the media, while other courts have read the same words to mean media should be compelled to testify.

    In the end of the Risen case, the government, fearful of setting the wrong precedent and confident it otherwise had the evidence to convict Jeffrey Sterling, punted. Waving the flag noblely over a messy situation, Attorney General Holder announced “As long as I am attorney general, no reporter who is doing his job is going to go to jail.” Federal prosecutors asked the U.S. District Court in Alexandria, Virginia to “exclude James Risen as an unavailable witness” and said the jury “should draw no inferences, favorable or unfavorable” based on his absence as a witness.

    Risen didn’t testify, and was not punished for publishing classified material by the government’s choice to back away from his case. The alleged leaker, Jeffrey Sterling, was thrown into jail for over two years. In 2015 Google turned over the Gmail account and metadata of a WikiLeaks employee in response to a federal warrant.

    No court precedent was set. The door was left open. To avoid a clear precedent that would grant journalists a reporter’s privilege under the Constitution, the government stepped away from the fight. While the balancing question of the “public interest” has been poked at in other contexts, no one has shown where the balancing point is between the government’s need to protect information, a citizen’s right to expose information, and the media’s right to publish it. That all waits for Julian Assange.

    Should the government bring Espionage Act charges against Julian Assange, there are complex legal questions to be answered about what if any First Amendment protections if any apply. Assange is not an American citizen and was not under U.S. jurisdiction when his actions regarding classified documents occurred. Is the fact that Wikileaks’ servers reside outside the United States and thus outside the protections of the First Amendment controlling, or does cyberspace lack such boundaries? By the way they chose to bring their case, government attorneys can influence how legal precedent is set on those matters. And if the United States can prosecute someone under those circumstances, any other government could demand foreign reporters anywhere on earth be extradited for violating their laws.

    The question also exists of who is a journalist and what is publishing in the digital world where thousands of files can be uploaded to a site instead of waiting for printing presses to run off copies. There is no debate over whether James Risen is a journalist, and over whether producing a book is publishing. Glenn Greenwald, Jeremy Scahill, and The Intercept, who have for years been writing about and placing online highly classified documents given to them by Edward Snowden, have never been challenged by the government as “journalists” or “publishers.” The elements of fact checking, confirming, curating, redacting, and in writing context around the classified information, were present in the New York Times’ case with the Pentagon Papers, and are present with Risen and Greenwald, et al. All involved are American citizens.

    Almost none of that applies to Assange. He has written nothing alongside the millions of documents on Wikileaks, has done no curating or culling, and has redacted information at times and not at others. Publishing in his case consists of simply uploading what has been supplied to him to a website. It would be easy for the government to frame a case against Assange that set precedent he is not entitled to any First Amendment or reporter’s privilege protections whatever they may be — clicking UPLOAD isn’t publishing and Assange isn’t a journalist. The simplest interpretation of 18 U.S.C. § 793(e) in the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization would apply. Guilty, same almost all of the leakers, whistleblowers, data thieves, hackers, and other canaries in the deep mineshaft of Washington, DC before him.

    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 got a phone call from the President and decided 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 Wikileaks and Internet created them.

    Allowing these new tools to be broken over the meaning of the words journalist and publishing will stifle all 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 say national security leaks. Is a reporter, for example, publishing a Signal number and asking for government employees to leak to her 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 government in the case of Assange may see the chance to mold the legal precedents with such certainty that they will seize this chance where they have backed away from others. The Assange case may prove to be the topper in a long-running war of attrition against free speech.

    In mid-2004, James Risen and Eric Lichtblau uncovered George W. Bush’s illegal warrantless eavesdropping program, but the New York Times held the story for 15 months, until after Bush’s reelection. Executives at the Times were told by administration officials that if they ran the story, they’d be helping terrorists. They accepted that. In 2006 the Los Angeles Times similarly gave in to the NSA and suppressed a story on government wiretaps of Americans. Glenn Greenwald said it plainly: too many journalists have gone into a self-censoring mode, practicing “obsequious journalism.”

    Assange, and those who follow him in this new paradigm of journalism and publishing, have made mistakes while broadly showing courage, not restraint, under similar circumstances and the public is better informed because of it. In the words of one commentator, “WikiLeaks liberates the right to free speech from authorities that restrict access.” Along the way the 2007 release of the Kroll report on official corruption in Kenya affected a national election, while in 2009 Wikileaks exposed the moral bankruptcy of Iceland’s banks. A 2011 Amnesty International report pointed to the role of leaked documents in triggering revolutionary global uprisings. The BBC said Wikileaks revelations were a spark for the Arab spring.

    “This is the biggest free speech battle of our lifetimes,” said the Electronic Frontier Foundation. “This is the moment when we will see whether publishers can continue to freely distribute truthful political information online.”

    I support Assange because he is someone who fell into a place and time where crucial decisions will be made. Allowing Assange to speak now, and to travel unfettered to Ecuador and permanent asylum will allow others after him to continue to provide evidence when a government serves its people poorly and has no interest in being held accountable. Prosecution of Julian Assange can only come from a nation which fears the noise of democracy and prefers the silence of compliance.



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    Posted in Democracy, Post-Constitution America

    America’s Real Loss of Prestige and Leadership Abroad

    June 19, 2017 // 13 Comments »




    Because we traded the smooth talking guy for the clumsy boob with no manners, it is popular to bleat that America has given up its role as leader of the free world, to say other nations don’t respect us anymore, or look to us for moral guidance — in the extreme, that we are no longer that shining city on the hill we see ourselves as.

    What such cliches overlook is that not everyone in the free world is as blind as a typical American op-ed writer. Some in fact see past who the current Spokesmodel of Democracy in the White House is, and look to what America actually does. And what it does is often not pretty, and when revealed suggests our nation is and has been morally bankrupt a lot longer than the Trump administration has been in charge.

    One of the more recent revelations of what much of the world already knew comes, again, via Wikileaks, America’s conscience.

    Leaked documents show home internet routers, that blinking thing in the corner of the room where you’re reading this, from ten American manufacturers, including Linksys, DLink, and Belkin, can be turned into covert listening posts that allow the Central Intelligence Agency to monitor and manipulate incoming and outgoing traffic and infect connected devices.

    Short: American-made devices sold globally to allow the free world to use the Internet have been repurposed by the CIA as spy tools.

    The CIA’s technique requires new firmware to be added to the router. This can be done remotely, over WiFi, at the factory, or at any point along the supply chain. It is unknown if America’s leading electronics manufacturers actively helped the CIA do this, passively allowed the CIA to do this after sharing technical data, or simply looked the other way.


    The results of this CIA hack are spectacular.

    The firmware allows the CIA full access to the router, and all connected devices and networks. The spooks can insert malware, copy passwords, see what is being sent and received, redirect browsers to fake websites, why there is little-to-no limit. Apparently the user interface the CIA created for itself is quite friendly. There’s even a Quick Start Guide.

    And you know what?

    The CIA has been doing all this since at least 2007. That means it started under the George W. Bush administration, ran during both Obama terms, and continues without a break right into the Trump years. Three very different presidents, three very different self-images for America, yet underlying all was the same CIA, turning American products to their own needs and spying on well, everyone. Anyone. Free world or not.


    From a global perspective, it doesn’t really matter whether the person in the White House is a Nobel Peace Prize winner or a bumbling oaf. Because the real America, the one that spies on a global scale for its own ends, never changes. That guy on TV you hate? He’s just a placeholder, maybe a distraction, about as consequential to the real role of the United States as a professional wrestler.




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    Posted in Democracy, Post-Constitution America

    Dear President Trump: Do Not Prosecute Wikileaks

    May 31, 2017 // 19 Comments »




    Chelsea Manning, whose information about the war in Iraq first brought Wikileaks to the attention of Americans, will leave prison as a free woman on May 17.

    However, the U.S. government’s attempts to punish people for bringing war crimes from Iraq into daylight continues, in the form of prosecutions directed against Wikileaks and/or its founder Julian Assange.

    I recently signed an open letter in support of Wikileaks, as drafted by the Courage Foundation. Here it is.


    Dear Mr. President,

    We are journalists, activists and citizens from the United States and
    around the world who care about press freedom and are writing to you in
    response to the latest threat of prosecution against WikiLeaks for its
    journalistic work. We ask you to immediately close the Grand Jury
    investigation into WikiLeaks and drop any charges against Julian Assange
    and other Wikileaks staff members which the Department of Justice is
    planning.

    This threat to WikiLeaks escalates a long-running war of attrition
    against the great virtue of the United States — free speech. The Obama
    Administration prosecuted more whistleblowers than all presidents
    combined and opened a Grand Jury investigation into WikiLeaks that had
    no precedent. It now appears the US is preparing to take the next step
    — prosecuting publishers who provide the “currency” of free speech, to
    paraphrase Thomas Jefferson. It is reported that charges, including
    conspiracy, theft of government property and violating the Espionage Act
    are being considered against members of WikiLeaks, and that charging
    WikiLeaks Editor, Julian Assange, is now a priority of the Department of
    Justice.

    A threat to WikiLeaks’ work — which is publishing information protected
    under the First Amendment — is a threat to all free journalism. If the
    DOJ is able to convict a publisher for its journalistic work, all free
    journalism can be criminalised.

    We call on you as President of the United States to close the Grand Jury
    investigation into WikiLeaks and drop any charges planned against any
    member of WikiLeaks. It was a free and robust press that provided you
    with a platform on which to run for president. Defending a truly free
    press requires freedom from fear and favour and the support of
    journalists and citizens everywhere; for the kind of threat now facing
    WikiLeaks — and all publishers and journalists — is a step into the
    darkness.

    Sincerely,

    Trustees of Courage




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    Posted in Democracy, Post-Constitution America

    My Letter in Support of a Reduced Sentence for Pvt. Manning

    May 17, 2017 // 18 Comments »

    According to the Uniform Code of Military Justice, Convening Authorities can reduce or eliminate a convicted soldier’s sentence. They use this power when they feel the court martial failed to deliver justice. As Commanding General of the Military District of Washington, Major General Jeffrey S. Buchanan is the only other individual besides President Obama (and there ain’t no joy there unless Manning qualifies as a Syrian kid) with the power to lessen Pvt. Manning’s sentence.

    This process is not new, nor unique. Though a slightly different judicial procedure, the Air Force Court of Criminal Appeals only in June of this year reduced the sentence of a former Ramstein Air Base staff sergeant who advertised babysitting services to gain access to three young girls he repeatedly sexually assaulted. Staff Sgt. Joshua A. Smith’s sentence was reduced such that Smith, 30, would be eligible for parole after a decade or more. The appellate judges, in their written opinion, said that despite the heinousness of Smith’s crimes against the girls — ages 3, 4 and 7 — the sentence handed down in November 2010 by military judge Col. Dawn R. Eflein and approved by the Third Air Force commander was “unduly severe.”


    If you wish to add your voice to the many now asking for Manning’s sentence to be reduced, the instructions on how to do so are straightforward.

    Here is what I wrote:

    Major General Jeffrey S. Buchanan
    Commanding General, U.S. Army Military District of Washington, DC

    General Buchanan:

    I write to request that as the Convening Authority in the case of U.S. v. Bradley E. Manning you move to reduce Pvt. Manning’s sentence to time served. Pvt. Manning has, in the course of several difficult years of confinement, taken responsibility for his actions and has been punished.

    As the leader of a State Department Provincial Reconstruction Team (PRT) in Iraq, I was embedded with the 10th Mountain Division, 2nd Brigade at Forward Operating Base (FOB) Hammer at the same time Manning was deployed there (though we never met.) I worked closely with Colonel Miller and his team to implement U.S. goals, and came away with great respect for him and his officers, and the enlisted men and women of the Commandos.

    At the same time, I experienced first-hand the austere conditions at FOB Hammer, and the difficult lives the soldiers led. As you are aware, one young soldier tragically took his own life early in the deployment at Hammer. Many veteran soldiers, some who served in the Balkans, also talked about the rough conditions at our FOB. I saw that at times computer security was imperfect. While none of this excuses Pvt. Manning (nor should it; he himself has plead guilty to multiple counts), it does in part help explain it. I ask that you consider these factors in your decision.

    As a State Department employee, I had access to the same databases Pvt. Manning in part disclosed, and back in Washington played a small roll in State’s “damage review.” I thus know better than most outsiders what Pvt. Manning did and, significantly, did not disclose, and am in a position to assess dispassionately the impact. As the State Department and the DoD reluctantly concluded at Manning’s trial, little if any verifiable damage was indeed done to the United States. There is no denying that the disclosures were embarrassing and awkward, but that is not worth most of a man’s life.

    Justice elevates us all, and reflects well on our beloved nation. The revenge inherent in a 35 year sentence against Pvt. Manning does not.

    Very Respectfully,

    (signed)

    Peter Van Buren



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    Posted in Democracy, Post-Constitution America

    Would You Have Chelsea Manning’s Courage When Called?

    // 28 Comments »




    Chelsea is free!


    With more than a little irony, while I was in Iraq working for the State Department, Chelsea Manning’s office was across the hall from mine. While I was winning the war by writing emails to the embassy, Manning was across the hall capturing the texts of hundreds of thousands of State Department cables, famously released by Wikileaks, showing that was could never be won.

    My war in Iraq ended in near-complete failure. What Manning did will have an impact far beyond that terrible struggle. In this video, I ask the question of why I didn’t do what Manning did, and challenge the audience: when faced with history, would you have the courage to do what Manning did?

    I didn’t.


    Skip ahead to about 2:30





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    Posted in Democracy, Post-Constitution America

    Chelsea Manning Faces Indefinite Solitary Confinement for Possession of Expired Toothpaste

    August 18, 2015 // 7 Comments »

    manning_cell

    Chelsea Manning, who is currently serving a 35-year prison sentence for leaking government documents to WikiLeaks as an act of conscience (why she said she did it) concurrent with Hillary Clinton exposing much higher-level classified documents to the Chinese for her own convenience (why she said she did it), has been threatened with possible “indefinite solitary confinement” for a series of trivial infractions, including owning expired toothpaste and sweeping food onto the floor.

    Her (Manning, not Clinton) hearing is today, August 18.

    ACLU attorney Chase Strangio says Manning is additionally accused of “disrespect” for requesting her lawyer while speaking to a guard and “prohibited property” for owning books and magazines that include the Caitlyn Jenner cover issue of Vanity Fair.

    Manning’s supporters provided a detailed list of her alleged violations:

    Manning’s “prohibited property” included:

    Vanity Fair issue with Caitlyn Jenner on the cover, Advocate, OUT Magazine, a Cosmopolitan issue with an interview of Chelsea, Transgender Studies Quarterly, novel about trans issues, the book Hacker, Hoaxer, Whistleblower, Spy — The Many Faces of Anonymous, the subversive book I Am Malala,” and legal documents being used for her pending appeals including the Senate Torture Report.

    Perhaps there is some validity to the Senate Torture Report being prohibited property, as it clearly is pornography.

    If you wish to support free speech, you can sign a petition supporting Chelsea online. I did.

    If you wish to simply rant about how she deserves it, and/or shout homophobic slurs, well, I guess we have the comments section below where you can relieve yourself.



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    Posted in Democracy, Post-Constitution America

    Statement of Terms Regarding My Private Email Server

    April 4, 2015 // 17 Comments »

    pcPlease note that the files, including emails sent and received, for WeMeantWell.com, as well as The We Meant Well Foundation and the Peter, Hillary and Miley Global Initiative and Crime Syndicate, are maintained on a private server unguarded by pretty much anyone except this one dude who comes in Tuesdays and Thursdays.

    As such, all such files, should they in fact exist, are private property and not subject to any existing disclosure laws or regulations, should those exist. Since I forgot to sign any release forms when leaving the Department of State, the eight bazillion gigabytes of files that stuck to the bottom of my shoe as I was frog-marched out of the building are also not subject to disclosure. Those files are now held in a paper bag in the former Benghazi Consulate and Shoulder-to-Air Missile Emporium. Since as of 2012 that facility is no longer U.S. property, they are not subject to Congressional subpoena. If Trey Gowdy freaking wants them, he can go to Libya himself and demand them from the militias there.

    However, in the interest of full disclosure, I have instructed my intern, who unfortunately does not read English, to carefully review every file in my possession and turn over to the Department of State any she finds that are work-related. How you want to play this is up to you– either she’ll learn English first before getting right to work, or we’ll just shred the files. Either way, don’t expect jack sh*t out of me.

    Sorry, my lawyer just advised me to rephrase that. The review process will be robust, ongoing, and comprehensive.


    Quick Note: Any State Department folks reading this, I sorta left something behind when I last left the office. It is stuffed between my old desk and the wall, a manila folder marked “Stuff I Gave to Wikileaks.” It’s next to the “Snowden” things. I don’t need those, they’re on the web now. If you could grab the Wikileaks thingie for me, I’ll buy coffee!




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    Posted in Democracy, Post-Constitution America

    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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    Posted in Democracy, Post-Constitution America

    Would You Have Chelsea Manning’s Courage When Called?

    February 19, 2014 // 13 Comments »

    The Sam Adams Associates for Integrity in Intelligence (SAAII; I am a proud voting member) have voted overwhelmingly to present the 2014 Sam Adams Award for Integrity in Intelligence to Chelsea Manning. The award ceremony will be held February 19, 2014 at Oxford University’s Oxford Union Society. Chelsea will send a statement, and SAAII members will be hosted for dinner at the Ecuadoran Embassy in London.

    With more than a little irony, while I was in Iraq working for the State Department, Chelsea Manning’s office was across the hall from mine. While I was winning the war by writing emails to the embassy, Manning was across the hall capturing the texts of hundreds of thousands of State Department cables, famously released by Wikileaks, showing that was could never be won.

    My war in Iraq ended in near-complete failure. What Manning did will have an impact far beyond that terrible struggle. In this video, I ask the question of why I didn’t do what Manning did, and challenge the audience: when faced with history, would you have the courage to do what Manning did?

    I didn’t.



    BONUS: Seated to my right on the panel is Daniel Ellsberg. On my immediate left is Michael Ratner, one of Manning’s attorneys. The woman on the end is Jesselyn Radack, who currently serves on Edward Snowden’s defense team, and is a whistleblower herself.



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    Posted in Democracy, Post-Constitution America

    I Finally Make It to Wikileaks

    February 12, 2014 // 17 Comments »

    Though I believe one of the alleged cables I allegedly wrote while allegedly employed by the alleged Department of State may have alledgedly been included in the 250,000 documents Chelsea Manning most certainly revealed to Wikileaks, I’m not supposed to tell.


    But now, thanks to an alert reader (DP, this one goes out to you), I have just found out that I officially made it to Wikileaks.


    The “GI Files” (General Intelligence files) published by Wikileaks, feature over five million emails from the Texas headquartered “global intelligence” company Stratfor. They reveal the inner workings of a company that fronts as a publisher, but in reality provides confidential, subscription-based, intelligence services to large corporations, such as Dow, Lockheed Martin, Northrop Grumman, Raytheon and government agencies, including Homeland Security, the Marine Corps and the Defence Intelligence Agency.

    Wikileaks revealed that on June 13, 2011, one of my blogs posts was blended into an article published by the English-language Jordan Times, which was picked up by the BBC. Stratfor then republished the article, including BBC’s copyright, which included my stuff, as an intelligence product to its paying clients.

    Now, the implications of this are several-fold:

    — Obviously if you get your news from Stratfor, the BBC or the Jordan Times, stop wasting your time and just read my blog. It’s free.

    — How can the BBC copyright something I wrote?

    — How can jerks like Stratfor get away with charging people serious coin for republishing things off the internet/BBC/Jordan Times?

    — And lastly, I think somebody owes me a check (which I will donate to Wikileaks)


    Your move Stratfor.




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    Manning’s Apology: Try Compassion and Understanding, Not Vindication

    August 16, 2013 // 7 Comments »

    With the Bradley Manning sentencing decision expected in about a week, much attention has turned to his statement in court on August 14 essentially begging for leniency, and thus his life. Many people who support Manning are confused and maybe saddened by his apology and contrition. Others seem gladdened, feeling that Manning humiliated himself and chose not to call himself a whistleblower.

    I see it differently.

    Manning watched over more than three years as the government denied him first his rights, then attempted to break him psychologically, then subjected him to a drumhead court martial based on denied defense motions, limits on witnesses he could call, exaggerated and stacked charges and a lack of transparency. He saw that he was convicted of espionage even after the government admitted that they could show no actual harm done by his disclosures and that no foreign power was helped. He spied for no one, and aided no one but the American people in better understanding how America makes war and conducts diplomacy.

    The totality of this left Manning with no choice but to exercise the last chance at justice he had left, a sentence actually in line with what he actually did, as opposed to the defacto death sentence the government seeks. I am saddened that the process pressed Manning into this final act of subjugation as his only hope for a whiff of fairness.

    Wikileaks said something similar:


    “The only currency this military court will take is Bradley Manning’s humiliation. In light of this, Mr. Manning’s forced decision to apologize to the U.S. government in the hope of shaving a decade or more off his sentence must be regarded with compassion and understanding… Bradley Manning’s apology was extracted by force, but in a just court the US government would be apologizing to Bradley Manning. As over 100,000 signatories of his Nobel Peace Prize nomination attest, Bradley Manning has changed the world for the better. He remains a symbol of courage and humanitarian resistance.”


    (A quick Google search for images with the term “Manning” turns up more pictures of NFL quarterbacks Peyton and Eli than Bradley. He’s already slipping down the Memory Hole.)




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    Posted in Democracy, Post-Constitution America

    State Dept: Look But Don’t Touch Snowden

    July 3, 2013 // 17 Comments »

    While the entire rest of the world chews over Edward Snowden’s disclosures, sleep safe America, because your State Department (as well as somehow the Department of Agriculture) has its collective head in the sand.

    A previously-unpublished cable sent recently to all employees worldwide “allows” them to look at Snowden’s disclosures on the internet (congrats; that’s a step up from when Hillary Clinton banned everyone from looking at Wikileaks at work) but they better darn well not “save, copy, or print” anything. See, if you just look at a document on that thar computin’ machine, it’s A-OK. But if yens’ print it out, then it becomes magically super-classified again and you gotta poke out yer own eyes. And you kids better not be doin’ any more speculating or you’ll feel my belt on yer backside! Makes sense, right?

    Read it yourself (it’s all unclassified) and pretend you’re a real diplomat. Just be sure not to print this out or there’ll be a knock on your door late tonight!

    FM SECSTATE WASHDC
    TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE IMMEDIATE
    AMEMBASSY TRIPOLI IMMEDIATE
    INFO DEPT OF AGRICULTURE USD FAS WASHINGTON DC
    UNCLAS STATE 088244
    E.O. 13526: N/A
    TAGS: ASEC
    SUBJECT: PROPER HANDLING OF PURPORTED CLASSIFIED MATERIALS IN THE MEDIA

    1. The Department reminds all personnel that the unauthorized
    disclosure of purported classified documents in the media (whether
    in print or on blogs and websites) does not mean the documents have
    been declassified. All employees must continue to abide by the
    classification markings on such documents and handle them with the
    appropriate protections, even if they have been posted on internet
    websites or otherwise been made public by the media.

    2. While Department employees may access news articles or outlets
    using the Department’s unclassified computer network (OpenNet), you
    are reminded not to save, copy, or print any purported classified
    documents
    that may be posted on or available for download from media
    websites. If you must print such purported classified material, it
    must be handled in accordance with 12 FAM 530, which requires
    locking classified materials in proper containers, as well as all
    other applicable FAM and FAH regulations governing protection of
    classified material.

    3. Personnel should neither speculate about the authenticity of any
    such document nor discuss whether any publicly released document is
    classified or unclassified. Any media inquiries should be referred
    to your post’s Public Affairs office.

    4. Further questions regarding how to handle purported classified
    material found in the media should be directed to your Regional
    Security Office.

    5. Minimize considered.

    Kerry


    BONUS: The Army is scared too.



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    Posted in Democracy, Post-Constitution America

    So Who From State Will Testify Against Bradley Manning? A List.

    May 17, 2013 // 12 Comments »

    The trial United States v. Pfc. Bradley Manning is being conducted in as much secrecy as the government thinks it can get away with. While the Center for Constitutional Rights has filed a petition requesting the Army Court of Criminal Appeals “to order the Judge to grant the public and press access to the government’s motion papers, the court’s own orders, and transcripts of proceedings,” none of these have been made.

    Except of course for Alexa O’Brien, who has amazingly sat in the limited public access area and personally written down every word said that she was allowed to listen to, effectively creating a de facto transcript.

    It is heavy legal reading, but worth your time simply to see what lengths the government is going to hang one man. Manning’s actions took place years ago, and whatever he released has been on the internet for years. Any punishment will thus have no real effect, except to commit revenge. So it is in 2013 America.

    Who Speaks?

    Deep inside the transcript is a list of upcoming government witnesses. As a public service, we present the names below as they appear, with Alexa’s comments. State Department people in BOLD that I added.

    In the government’s 15 March 2013 classified filing Supplement to Prosecution Response to Scheduling Order of 39(a) Session from Closure and Motion to Close Courtroom for Specified Testimony, the government describes the classified information it moves to elicit in closed session for the following witnesses:

    (1) Brigadier General Retired Robert Carr, DIA

    (2) Colonel Julian Chestnut, DIA

    (3) Classified Witness Entirety

    (4) Ms. Elizabeth Dibble, Department of State, Principal Deputy Assistant Secretary, Bureau of Near Eastern Affairs

    (5) John Doe (Entire)

    (6) Rear Admiral Kevin Donegan, Naval Warfare Integration, Pentagon

    (7) Mr. John Feeley, Principal Deputy Assistant Secretary, Bureau of Western Hemisphere Affairs, Department of State

    (8) Ambassador Patrick F. Kennedy, Under Secretary for Management, Department of State

    [Diplomatic Security Services which partnered with the Departments of Defense and Justice in the investigation of Julian Assange, WikiLeaks, and Manning report to Ambassador Patrick Kennedy. Bureau of Intelligence and Research, which created the “August 2011 draft damage assessment” also reports to Kennedy. Kennedy is the Original Classification Authority for the US State Department cables. He also testified to Congress in late November, early December of 2010, and in March 2011 about WikiLeaks. He is also responsible for the WikiLeaks Mitigation Team at the Department of State.]

    (9) Mr. John Kirchhofer, DIA

    (10) Ambassador Michael Kozak, Department of State

    (11) Classified Witness Entirety

    (12) Mr. Daniel Lewis, DIA

    (13) Mr. Randall Mcgrovey [sp.?], DIA

    (14) Mr. James McCarl, Joint IED Defeat Organization (JIEDDO)

    (15) Major General Kenneth F. McKenzie, USMC Headquarters Staff

    (16) Mr. James Moore, Department of State

    (17) Major General Michael [last name like, “Ma-guy”] McGuy, Joints Staff Pentagon

    (18) SSA [Supervisory Special Agent] Alexander Pott [sp.], FBI

    (19) Ambassador David Pearce, Department of State

    (20) Mr. Adam Pearson, JIEDDO

    (21) Mr. H. Dean Pittman, Department of State

    (22) Classified Witness in Entirety

    (23) Ambassador Stephen Seche, Department of State

    (24) Mr. David Shaver, US Department of Treasury

    (25) Mr. Catherine Stobel [sp.], CIA

    (26) Ambassador Don Yamamoto, Department of State

    (27) Ambassador Marie Yovanovitch, Department of State; and

    (28) Mr. Joseph Yun, Department of State


    So Who Are These People?

    Of course we have no idea whether any of the unnamed “classified” witnesses are from State, though it is doubtful.

    Most/all of the State Department people listed head up various bureaus at State. These bureaus are the bureaucratic structures that handle say “East Asian Affairs” or “European Affairs.” Just guessing here, but the government is probably calling them to testify on behalf of their world region about all the horrible, terrible things that have happened since Manning released the documents. None of us will be allowed to hear what they have to say, but it would be safe to assume the court will listen to a lot of drama and smoke and LIONS and TIGERS and BEARS! horror-speak and very little substantive comment.

    The most interesting State witness is Patrick F. Kennedy, the Under Secretary of State for Management. Kennedy keeps popping up on this blog, in the press and in front of Congress (he was the real point man on Benghazi.) He has been around State for a very long time, and basically runs the place administratively in Washington while various important people fly around the world doing their diplomacy.

    Kennedy is officially the “original classifying authority,” the person at State who is titularly responsible for every classification decision. He may just offer up some boring testimony confirming that all the documents manning leaked labeled “Secret” were indeed classified Secret.

    Or maybe not. Kennedy also oversaw State’s internal report on the Wikileaks impact and ran the working group that was supposed to identify people at risk because their names appeared in the State Department cables online. Notice how every weird, bad or naughty thing that State does somehow involves Pat Kennedy?It would be worth serious coin to listen in on Kennedy’s testimony but alas, because this is America now, the trial is largely off limits.



    Bonus: Some earlier State Department personnel testimony about State’s internal processes surrounding the Wikileaks disclosures. Nothing earth shaking, but some interesting inside baseball stuff from Ops Center coordinator Rena Bitter about how the bureaucracy processed the new information. Short version: most of the effort was spent informing Department big shots of potentially embarrassing stuff the media caught. The Defense seems to be establishing that there was not much real-world impact from the disclosures.



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    Posted in Democracy, Post-Constitution America

    We are All Bradley Manning: 1000 Days in Jail without a Conviction

    February 25, 2013 // 13 Comments »

    Bradley Manning, the young army private who allegedly disclosed the Wikileaks files, must be given a fair, open and speedy trial. He has been held over three years, often in solitary and inhumane conditions. He has been convicted of no crime. This is simply and self-evidently wrong.

    The crimes Manning is accused of, a cascading series of offenses all restating that he leaked classified material, hurt no one; the government, in fact, has gone out of its way to declare that it need not show any damage done in its pursuit of the death penalty for Manning. The US Department of State, whose 100,000 leaked cables have been on the internet for over three years, formed then quickly disbanded a “task force” designed to show all the terrible things that resulted from Manning’s alleged disclosures. The Department has since, in response to Freedom of Information Act requests, itself released documents Manning is threatened with the gallows for releasing. No harm has been shown, no lives lost, no American goals thwarted.

    I probably had dinner with Bradley Manning when we were both stationed at Forward Operating Base Hammer in Iraq at the same time (I worked for the Department of State). The office where he allegedly did his dirty work was down the hall from mine, so it is hard to believe we never walked past each other or shared a table in the single cafeteria on base.

    In 2011 as a State Department employee, I linked from my personal blog to a document on the Wikileaks site, a document that may have been provided by Manning. In return for this simple internet link, the State Department took away my security clearance, threatened me with prosecution and stripped me of my career of 24 years as a diplomat, all without any review, due process or opportunity to rebut their silly accusation that I too had disclosed classified material, via a hyperlink. My life changed, with a stroke of a pen, as is said.

    Bradley Manning, convicted of no crime, is in his third year of incarceration. He spent part of the first year in a literal cage in Kuwait, followed by a year or more in custody where he was stripped of his clothing, not allowed contact with any humans besides his jailers and constantly mocked, ridiculed a and taunted, all without any review, due process or opportunity to rebut the accusations against him. With a stroke of a pen, as is said.

    A lot of things happen now in America with the stroke of a pen: innocent people end up on no-fly lists, Occupy organizers have their phone calls and emails monitored, jobs are denied to hard working people after some “background check” fails and in the ultimate, a drone may kill a person. All without any review, due process or opportunity to rebut.

    Our nation was founded on a set of ideas, some dating as far back as the Magna Carta. Chief among those ideas was an overriding principle that the people should be able to live their lives unmolested by their government, and that to ensure that, restraints were written into law that would prevent the government from taking away someone’s privacy, freedom or life arbitrarily. Courts, open and public, would weigh the government’s desire to deprive people of their lives against these broader principles. It was what made America a special place, perhaps the only nation founded on an idea. We have abandoned those concepts. We have failed Bradley Manning and we have failed ourselves.

    I don’t know what Bradley Manning did, and neither do you. A court must decide, in a speedy and open manner because that is what our America is about. Everyday Manning is denied that right—and it was 1000 days as of February 23—we are all denied that right. America is nothing but a sum of its people, and when we deny justice to one we deny it to all. Give Bradley Manning a fair, speedy and open trial for his sake, for our own sake and for this nation’s sake.



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    Posted in Democracy, Post-Constitution America

    Arrest Josh Rogin of Foreign Policy.com

    January 17, 2013 // 15 Comments »

    Hello? FBI? CIA? Diplomatic Security? You have a leak. A source inside the State Department leaked a SECRET cable to reporter Josh Rogin of Foreign Policy.com, and Rogin published details of the cable on the web site. This is exactly what Bradley Manning and Julian Assange did on Wikileaks, so hurry!!!!!!!!!

    It is true. You can read the details of what Rogin claims is an actual Secret State Department cable right now online. Except for the Internet, you would otherwise need to work for the State Department or in the intelligence community to see this kind of information. Or maybe be Julian Assange.

    Actually, there is no rush. The cable purports to be “evidence” that the Syrian Government used chemical weapons against its insurgents and was clearly and obviously leaked by the Obama team as a trial balloon. You see, Obama needs to test public opinion and/or prep public opinion on some sort of more bloody and “robust” intervention into Syria. Leaking the cable is one way to do that– find a sympathetic writer who will publish the information as an exclusive without committing too much actual journalism by asking questions like “Mr. or Ms. Leaker Person at the State Department, exactly why did you risk your career and indeed confinement in Federal prison to pass a secret level document to a popular web site? Aren’t you aware that Bradley Manning is facing execution for just such a thing?”

    (And the cable is crap. Interviews in Turkey with Syrian defectors [facilitated by BASMA, an NGO the State Department hired as one of its ‘implementing partners’ inside Syria. BASMA connected State with willing witnesses] who are trying desperately to get the U.S. drawn deeper into the Syrian conflict for their own benefit. And yes this is exactly what happened with self-serving Iraqi defectors in the run-up to the 2003 Iraq invasion).

    So anyway Josh Rogin fans, I doubt he is in danger of arrest. In America, sharing secret documents is a crime only when it isn’t the president doing it.



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    Smartest Man in the World Supports We Meant Well

    September 1, 2012 // 5 Comments »

    Comedian Greg Proops (“Who’s Line is it Anyway?”), who calls himself “The Smartest Man in the World,” gave a shout out of support to We Meant Well, Julian Assange and all those who stand up for free speech.

    Listen to the podcast; the whole thing is funny and entertaining but for Mom, the part about me starts at around 50:40 in.



    BONUS: The point of free speech, by the way, is the literal freedom to speak. You the listener can change the channel, ignore someone you disagree with, be distracted by your iPad, or listen intently. Your choice. Choice is the operative word, Assange haters and email writers to this blog who continue to propose I conduct impossible sexual acts on myself. Guys, if I actually could f*ck myself I probably would be doing it.



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    Debate: Wikileaks and Assange: Journalist or Threat to National Security?

    August 27, 2012 // 9 Comments »

    From CCTV, a “heated” discussion between Justin Danhof, General Council of the NCPPR, and Peter Van Buren, a former U.S. Foreign Service Officer, on the impact Julian Assange and Wikileaks will have in the world of international relations and national security.


    (If the video is not embedded above, follow this link)

    P.S. I think I won the debate.



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    On Social Media, State Department Stands Alone

    July 15, 2012 // 5 Comments »




    (This article was originally published on the Huffington Post, June 1, 2012)

    As other parts of the Federal government begin to examine their own practices toward social media and publication review, the State Department stands alone in clinging to a 19th century model emphasizing lack of transparency and message control. That State seeks this modus in a largely unclassified world and while other agencies move toward change makes even more ripe State’s policies for a judicial challenge.

    Introspection at the CIA

    The CIA, for example, has begun a voluntary internal investigation into whether a process designed to screen books by former employees for classified information is wrongly and unconstitutionally being used to censor agency critics. The investigation is aimed at determining whether some redactions have been politically motivated. The target of the probe is the agency’s Publications Review Board, which is supposed to focus on whether publication of material would threaten national security interests. CIA critics said the disparities in the review process are particularly apparent in books that deal with controversial subjects, including waterboarding and other forms of “authorized” torture. (The Washington Post story on the CIA’s internal reform was of course not included in the State Department’s own internal press summary of the same day’s “Federal News.”)

    Embracing Social Media in the Army

    The State Department’s regulations also trail behind other government agencies, particularly the military. Military regulations concerning blogging and social media are not onerous and do not involve pre-clearance requirements. The Army encourages blogging in both official and private capacities, and has published glossy brochure-ware highlighting best practices for each. Though the Army heavily regulated military blogging briefly in 2008, it quickly reversed course. Military Law statutes, regulations, and cases available do not contain any references to pre-clearance requirements.

    In fact, the Army social media guidelines are all online, in a colorful, user-friendly slideshow. They begin with the stated premise that “It is important to be as transparent as possible. As communicators, we need to be the first with the truth, whether it’s good or bad.” The emphasis in the Army guidelines is on good judgement– don’t post things online that could endanger soldiers’ lives– with not a word mentioned about the need to pre-clear (indeed, the Army emphasizes the value of social media is in its immediacy) or the requirement to say only “nice things.” Indeed, the introduction to the social media guidelines emphasizes displaying the good with the bad, with “truth” as the goal. The Army guidelines provide lots of examples and include easy-to-understand (“soldier-proof”) checklists of Do’s and Don’t’s.

    State Stands Alone

    And then, standing alone, is the State Department.

    State has its own regulations (not “guidelines”) on social media. No slick slide shows at State. The social media regs start with 15 pages of text, and begin by citing 27 Executive Orders, OMB decisions and Federal laws the user is responsible for following, including 18 U.S.C. 713 and 1017, Use of Department and Government Seals (rather than prohibiting the use of Seals and logos, as State does, the Army includes links to web-ready artwork so social media users get the images right) and whatever the Anti-Lobbying Act of 1913, is.

    The secret sauce hidden in State’s hefty social media regulations is 3 FAM 4170, Official Clearance of Speaking, Writing, and Teaching. That reg is State’s requirement that all social media, even when posted as a private citizen, be pre-cleared, and that the State Department is allowed up to 30 working days to act.

    That means the State Department demands of all of its thousands of employees that they seek pre-clearance for every blog post, update and Tweet, every day, 24/7. An exaggeration on my part? Sorry, no– have a look at the compliance letter I was forced to sign as a condition of employment, which specifically mentions these things even when done by an employee in his or her private capacity.

    Obviously State cannot pre-clear what must add up to millions of social media utterances each week, and so it does not. In many instances when I have sought pre-clearance for a blog post on some timely matter, State simply sat on a response until, weeks later, the blog post was so irrelevant that it was not usable anymore. The law anticipated this type of government-foot-dragging-as-shadow-censorship, and in a seminal case on the free speech rights of Federal workers, stated:

    But even then insistence on advance approval would raise a further question, as before-the-fact condemnation of speech raises special concerns such as undue delay-the review itself plus time needed for a speaker to secure judicial relief-and stifling of expression that in hindsight would have been viewed as harmless or not worth the enforcement effort.


    Droppin’ Some Law On ‘Ya

    It was actions such as this that lead the American Civil Liberties Union (ACLU) to assert that the State Department violated my First Amendment free speech rights and acted unconstitutionally. My attempts to clear items for publication were met with lengthy delays and periods of no contact. It was indeed such actions by the Department that often lead me to publish without preclearance so that the material was relevant to breaking news.

    Want some law? Specifically on the issue of foot dragging on pre-clearance as a clever technique to kill a story, in Weaver the Court noted “if the prior review were extensive, of course, it might delay constitutionally protected speech to a time when its only relevance was to historians.” In Crue v. Aiken, the 7th Circuit found a pre-clearance directive without a schedule for the review of proposed communications problematic because nothing prevented the reviewing official from delaying approval of communications until they were no longer relevant. (Crue v. Aiken, 370 F.3d 668, 679 (7th Cir. 2004)).

    In Davis v. New Jersey Dept. of Law & Pub. Safety, the NJ Superior Court recognized that “before-the-fact review and approval requirements restrict employee speech—and raise special concerns such as undue delay and stifling of expression that in hindsight may be viewed as harmless or not worth the enforcement effort.” (Davis v. New Jersey Dept. of Law & Pub. Safety, Div. of State Police, 742 A.2d 619, 628-29 (Ch. Div. 1999)). Davis citing the Supreme Court in Freedman v. State of Maryland, notes that the danger present when a regulation “is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor’s determination may in practice be final.” (Freedman v. State of Md., 380 U.S. 51, 58, 85 S. Ct. 734, 738, 13 L. Ed. 2d 649 (1965)).

    I know, I know, too heavy Doc. It took the ACLU five dense pages to spell out in legal detail all the ways the State Department social media regulations were unconstitutional and violated my First Amendment free speech rights.

    Bottom Line

    So it is not as simple as some claim, broadly announcing that Federal employees give up their First Amendment rights, or that social media and the responsibilities of a classified job are incompatible. Federal employees do not give up their First Amendment rights, and there is plenty of law to substantiate that.

    The bottom line is this: If the hyper-classified CIA recognizes the need for an internal review of its pre-clearance process, why doesn’t the State Department? If the military, with its obvious day-to-day operational need for secrecy and its immediate impact on soldiers’ lives, can co-exist without pre-clearance restraints on blogs, why can’t State?

    Given the chance to make sane, voluntary changes to an obviously out-dated social media policy that stands outside the boundaries of other Federal agencies with a whole lot more secrets to protect, State appears ready to instead insist on having those changes dictated to it by a court. That is an expensive, and in this case, unnecessary way to change out-dated regulations.



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    Posted in Democracy, Post-Constitution America

    Great Moments in Public Diplomacy, Episode 174: Gagging in Sweden

    June 4, 2012 // 4 Comments »

    Sweden is now a year+ into trying to extradite Wikileaks guy Julian Assange from the UK. Sweden claims that the lengthy, complex and very expensive international legal process is necessary so it can question Assange (no charges have been filed) regarding what constitutes rape in Sweden, consensual sex without a condom.

    Of course no one who doesn’t sleep in a cardboard box under an overpass believes that is what Sweden really wants with Assange. Most sentient beings are certain that Sweden seeks Assange for “questioning” only as a pretext to turning him over to US authorities. The UK, where Assange has been under house arrest for over a year, won’t flip him to the US. Sweden will.

    So, in an effort to promote general worldwide hilarity, here’s a Tweet today from the US Embassy in Sweden, celebrating the coincidental first SecState visit to that nation in 36 years:



    Hillary-ious!

    Seriously, where do they find such public diplomacists, men and women totally lacking lacking in either a) intellect, b) morals or c) all of the above, who are so committed to sucking up that they can publicaly churn out crap like that Tweet? Really, you kiss your mother with that mouth? Talk about needing a condom for protection from something gross. Eeeeew.



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    Letter to the State Department

    May 31, 2012 // 3 Comments »

    The following is a letter I sent to the Director General of the Department of State, the head Human Resources person and the individual who will likely be firing me sometime soon. It refers to a State Department message (“cable”) she sent out reminding staff of the protections they have available to them as whistleblowers. That cable is reproduced in full, below.

    There has been no response to my letter from the State Department, ‘natch.



    Dear Director General Thomas-Greenfield:

    Thank you very much for sending today’s cable, below, reminding all employees of the role of the Office of the Special Counsel (OSC) in protecting Federal whistleblowers. I hope that seeing it go out under your name as Director General signifies your personal commitment to upholding the protections required by law.

    As such, I wish to remind you that I filed my written response to your Proposal to Terminate me for actions that in large part fall under the terms laid out in your cable.

    That my work does indeed qualify me as a whistleblower is without question; in fact, the Project for Government Oversight (POGO) called me an “important national whistleblower”. My book and blog have and continue to call attention to gross waste and mismanagement in the Iraq Reconstruction process, as well as other programs.

    As for retaliatory personnel practices, as you are aware the Department terminated me, defacto, in October 2011. By that time I had had my security clearance “temporarily” suspended (despite three DS interrogations, a computer forensic analysis and a second, full field investigation, my clearance status is still “temporary” and no decision has been issued some eight months later), was thrown out of my assigned job after a year of successful work, never given an EER for that work and then involuntarily curtailed without my knowledge or participation, and was physically banned from the building for several months with HR unlawfully retaining physical possession of my ID card (no reason given). A Fax from a Principal Deputy Assistant Secretary in Public Diplomacy to my publisher falsely accused me of a Federal crime of publishing classified information. Along the way I was placed on US Secret Service and Diplomatic Security watch lists as a potential danger to the Secretary of State. Later, I was made to sign an unprecedented and likely illegal Compliance Letter as a requirement just to continue work and forcibly assigned to a meaningless telework slot that in no way meets the acceptable standard for a Foreign Service Officer with 24 years of experience.

    After completing its investigation in December the Department took no action against me for some three months. Instead the Department waited until my retaliation complaint, filed with the Office of the Special Counsel (OSC), moved to the discovery phase to propose termination. The Department has offered no explanation for why it waited months to propose termination. The timing suggests that this is an attempt to derail the OSC investigation and deny me that third-party review of the Department’s action over the last year. Even as this separation proceeds, the Department is dragging its feet to impede the OSC investigation.

    Most ironic of all, given your cable, my representative attempted to negotiate a settlement with the Department. The negotiations failed because I would not yield to the Department’s key demand– to drop my complaint filed with the Office of the Special Counsel (OSC). That the Department made dropping the OSC complaint the cornerstone of its negotiating strategy makes clear that this proposal is all about derailing this third-party examination of the Department’s personnel practices.

    I look forward to meeting with you in the near future to discuss these issues further.

    Respectfully,
    Peter Van Buren
    Consul
    US Department of State



    The Cable
    UNCLASSIFIED STATE 00047512
    VZCZCXYZ0000
    RR RUEHWEB
    DE RUEHC #7512 1311656
    ZNR UUUUU ZZH
    R 101652Z MAY 12
    FM SECSTATE WASHINGTON DC
    TO RHMCSUU/DEPT OF HOMELAND SECURITY WASHINGTON DC
    R 101652Z MAY 12
    FM SECSTATE WASHDC
    TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE
    AMEMBASSY TRIPOLI 0000
    BT
    UNCLAS STATE 047512

    E.O. 13526: N/A
    TAGS: APER, AMGT
    SUBJECT: WHISTLEBLOWER PROTECTIONS AND PROHIBITED
    PERSONNEL PRACTICES IN THE FEDERAL GOVERNMENT

    FOR ALL DEPARTMENT OF STATE EMPLOYEES FROM THE DIRECTOR GENERAL

    1. ACTION FOR MANAGEMENT SECTION CHIEFS-SEE PARA. 6.

    2. I STAND COMMITTED TO ENSURING THAT ALL DEPARTMENT OF
    STATE EMPLOYEES ARE AWARE OF, AND UNDERSTAND, THE
    PROHIBITED PERSONNEL PRACTICES AND WHISTLEBLOWER
    PROTECTIONS. PROHIBITED PERSONNEL PRACTICES (PPPS) ARE,
    BY STATUTE, FORBIDDEN IN THE FEDERAL GOVERNMENT. ONE OF
    THE MOST FREQUENTLY DISCUSSED PPPS IS THE PROHIBITION OF
    RETALIATING AGAINST WHISTLEBLOWERS. WHISTLEBLOWING
    INVOLVES THE ACT OF DISCLOSING INFORMATION THAT AN
    EMPLOYEE REASONABLY BELIEVES IS EVIDENCE OF A VIOLATION
    OF ANY LAW, RULE OR REGULATION; GROSS MISMANAGEMENT; A
    GROSS WASTE OF FUNDS; AN ABUSE OF AUTHORITY; OR A
    SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH OR
    SAFETY. I FIRMLY BELIEVE THAT
    EMPLOYEES WHO ARE AWARE
    OF THESE PROTECTIONS WILL BE MORE CONFIDENT IN COMING
    FORWARD TO REPORT POSSIBLE VIOLATIONS.

    3. THE OFFICE OF SPECIAL COUNSEL (OSC) IS AN
    INDEPENDENT AGENCY THAT INVESTIGATES AND PROSECUTES
    ALLEGATIONS OF PPPS. BY LAW, FEDERAL EMPLOYEES MAY NOT,
    FOR EXAMPLE: DISCRIMINATE; COERCE THE POLITICAL ACTIVITY
    OF ANY PERSON; INFLUENCE ANY PERSON TO WITHDRAW FROM JOB
    COMPETITION; ENGAGE IN NEPOTISM; TAKE, OR THREATEN TO
    TAKE, A PERSONNEL ACTION BECAUSE OF THE EXERCISE OF A
    LAWFUL APPEAL, COMPLAINT, OR GRIEVANCE RIGHT; OR TAKE,
    OR THREATEN TO TAKE, A PERSONNEL ACTION BECAUSE OF
    WHISTLEBLOWING. FOR A COMPLETE LIST OF PPPS, YOU ARE
    ENCOURAGED TO VISIT OSC’S WEBSITE, HTTP://WWW.OSC.GOV,
    WHICH PROVIDES IMPORTANT INFORMATION ABOUT YOUR RIGHTS
    AS A FEDERAL EMPLOYEE, PPPS, WHISTLEBLOWING, AND
    DISCLOSURE PROCEDURES. COMPLAINTS ALLEGING PROHIBITED
    PERSONNEL PRACTICES SHOULD BE DIRECTED TO THE OSC AT
    202-254-3640, OR FILED ON-LINE AT HTTP://WWW.OSC.GOV.

    4. THE WHISTLEBLOWER PROTECTION ACT OF 1989 WAS ENACTED
    TO STRENGTHEN PROTECTIONS FOR FEDERAL EMPLOYEES WHO
    BELIEVE THEY HAVE BEEN SUBJECTED TO UNJUSTIFIED
    PERSONNEL ACTIONS IN REPRISAL FOR THEIR WHISTLEBLOWING
    ACTIVITIES. THE OSC PROVIDES THE SECURE CHANNEL THROUGH
    WHICH CURRENT AND FORMER FEDERAL EMPLOYEES MAKE
    CONFIDENTIAL DISCLOSURES, INCLUDING VIOLATIONS OF LAW,
    RULE,
    OR REGULATION, MISMANAGEMENT, FRAUD, ABUSE OF
    AUTHORITY, OR A SUBSTANTIAL DANGER TO PUBLIC HEALTH OR
    SAFETY. ANY DEPARTMENT OF STATE EMPLOYEE WHO HAS REASON
    TO BELIEVE THAT THERE HAS BEEN MISCONDUCT, FRAUD, WASTE,
    OR ABUSE IS ENCOURAGED TO REPORT THESE MATTERS.
    DISCLOSURES SHOULD BE DIRECTED TO OSC PER PARA. 3 ABOVE,
    OR TO THE DEPARTMENT’S OFFICE OF THE INSPECTOR GENERAL
    (OIG).

    5. FEDERAL EMPLOYEES HAVE THE RIGHT TO BE FREE FROM
    PROHIBITED PERSONNEL PRACTICES, INCLUDING RETALIATION
    FOR WHISTLEBLOWING. I AM COMMITTED TO MAKING SURE THAT
    ALL EMPLOYEES ARE AWARE OF THEIR RIGHTS AS WELL AS THE
    SAFEGUARDS THAT ARE IN PLACE TO PROTECT THEM. BY
    VISITING THESE WEBSITE LINKS, YOU CAN FIND DETAILED
    INFORMATION ABOUT YOUR RIGHTS AS A FEDERAL EMPLOYEE.

    HTTP://WWW.OSC.GOV/YOURRIGHTSFEDERALEMPLOYEE.HTM
    OUTLINES YOUR “YOUR RIGHTS AS A FEDERAL EMPLOYEE.”

    HTTP://WWW.OSC.GOV/DOCUMENTS/PUBS/OSCROLE.PDF IS A
    PAMPHLET ENTITLED “THE ROLE OF THE U.S. OFFICE OF
    SPECIAL COUNSEL” AND CONTAINS VALUABLE INFORMATION FOR
    REPORTING PURPOSES. I ENCOURAGE EACH EMPLOYEE TO
    CAREFULLY READ THIS PAMPHLET.

    THIS INFORMATION IS ALSO ACCESSIBLE THROUGH THE STATE
    DEPARTMENT INTRANET AT:
    HTTP://INTRANET.HR.STATE.SBU/EMPLOYEERELATIONS/CONDUCTSU
    ITABILITYDISCIPLINE/PAGES/WHISTLEBLOWERPROTECTIONACT.ASPX

    6. MANAGEMENT
    OFFICERS AT OVERSEAS POSTS ARE REQUESTED
    TO PRINT THE DOWNLOADABLE POSTERS ABOUT PPP’S AND WPA
    PROTECTIONS FROM THE WEBSITE LINKS BELOW, AND TO POST
    THEM IN HIGHLY VISIBLE LOCATIONS IN ALL BUILDINGS
    THROUGHOUT THE MISSION WHERE DEPARTMENT OF STATE
    EMPLOYEES WORK.

    HTTP://WWW.OSC.GOV/PPPPOSTER.HTM PROVIDES A PRINTABLE
    POSTER ON PROHIBITED PERSONNEL PRACTICES.

    HTTP://WWW.OSC.GOV/WBDISCPOSTER.HTM PROVIDES A PRINTABLE
    POSTER ON WHISTLEBLOWING.

    HTTP://WWW.OSC.GOV/DOCUMENTS/PUBS/POST_WBR.PDF PROVIDES
    A PRINTABLE POSTER ON WHISTLEBLOWER
    RETALIATION.

    7. IF YOU HAVE ANY COMMENTS OR QUESTIONS, PLEASE
    CONTACT HR/ER OR ME AT ANY TIME.

    8. MINIMIZED CONSIDERED.
    CLINTON
    BT
    #7512

    NNNN
    UNCLASSIFIED STATE 00047512



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    Posted in Democracy, Post-Constitution America

    James Bamford: State Department and Wikileaks “Alice in Wonderland”

    May 7, 2012 // 3 Comments »

    James Risen of The New York Times, James Bamford, author of The Puzzle Palace: Inside the National Security Agency, America’s Most Secret Intelligence Organizationand Matthew Miller, former spokesman for the Justice Department, discussed the Obama administration’s crusade against leaks of government secrets – and against some of the journalists who report them – at the National Press Club in Washington on May 1, 2012.

    I had a chance to ask Bamford and Miller a question about the State Department’s assertion that despite being available online to the entire world, the Wikileaks documents remain “classified,” and indeed government employees can be prosecuted for referring to them. Here is his reply:



    (If the video is not embedded above, please follow this link to see it)



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    Posted in Democracy, Post-Constitution America

    My Oath is to the Constitution, Not Hillary

    April 28, 2012 // 2 Comments »

    My thanks to Ryan, who I don’t know and have never met, for putting together this inspiring video making clear the difference between being a government drone and pretending your oath of allegiance is to some political boss, and standing up for the fact that the oath is to the Constitution.

    There is a difference between obedience to authority, which is required in an autocracy above all else, and loyalty to one’s Oath, which is required of patriots.

    Watch it now:





    (If the video is not embedded above, see it on YouTube)



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    Posted in Democracy, Post-Constitution America

    Hypocrisy of Free Speech: Only If We Agree with What They Say

    April 8, 2012 // 2 Comments »

    A story of our times as RT.com tries to pull back the curtain on the hypocrisy of US government statements about web freedom. They were kind enough to quote me:

    The State Department since 2008 has spent $76 million overseas on Internet freedom, giving tools and support to bloggers and journalists and online people around the world, particularly in countries that we have difficulties with,” he said. “At the same time, the State Department… has found Internet freedom to be inconvenient in the form of WikiLeaks, and has worked just as hard and probably spent even more money trying to shut down free speech that it opposes, while supporting free speech that it feels furthers America’s own political goals overseas. We call that hypocrisy.

    While trying to stifle inconvenient leaks at home, the US perceives the Internet and social networking platforms as major tools for spreading democracy, and spends millions of dollars to help people in the Middle East and China get around Internet-blocking firewalls. At the same time, ironically enough, American companies provide Bahrain, Saudi Arabia and Kuwait with the technology to effectively block websites.

    A lot of the tools of control that are used by the so-called repressive governments are provided by American companies, Peter van Buren explains. The difference is that corporations, for better or worse, talk about profit as their motivation. However, the American government talks about freedom and democracy as its motivation, when in fact in many ways it seems to act in the opposite direction.



    Read the entire piece online, and don’t miss the video of SecState Clinton pounding the pulpit for web freedom, at least if you’re Chinese or Iranian.



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    Hillary Clinton Internet Freedom Hypocrisy

    December 9, 2011 // 4 Comments »

    The people at Cryptome have a few words for Madame Secretary:

    Clinton’s comments contradict how the WikiLeaks-Bradley Manning Cablegate affair is being handled by the USG. And her accusations of government and commercial abuse and spying on the Internet apply to the US and its allies. The conference session should face these contradictions and if not resolve them establish principles and an agenda to do so. A demonstration of genuine Internet freedom would be the release of Bradley Manning and termination of the USG prosecutorial Cablegate investigation.


    And never mind this.

    But wait, there’s more. Glenn Greenwald at Salon also noticed the hypocrisy of our fave Secretary of State:

    Hypocrisy from the U.S. Government — having U.S. officials self-righteously impose standards on other countries which they routinely violate — is so common and continuous that the vast majority of examples do not even merit notice. But sometimes, it is so egregious and shameless — and sufficiently consequential — that it should not go unobserved. Such is the case with the speech delivered by Secretary of State Hillary Clinton yesterday at a Conference on Internet Freedom held at the Hague, a conference devoted to making “a stand for freedom of expression on the internet, especially on behalf of cyber dissidents and bloggers.” Clinton has been flamboyantly parading around for awhile now as the planet’s leading protector of Internet freedom; yesterday she condemned multiple countries for assaulting this freedom and along the way actually managed to keep a straight face.


    For me, the Secretary’s best line was this:

    The United States wants the internet to remain a space where economic, political, and social exchanges flourish. To do that, we need to protect people who exercise their rights online.


    That exercise of rights, Madame Secretary, includes the First Amendment, exercised here, by one of your employees. Thank you for believing so strongly in this and supporting my right to continue to speak.




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    Wanna Know a Secret? Ask the State Department

    // Comments Off on Wanna Know a Secret? Ask the State Department

    A brief recap:

    Bradley Manning or someone released a bazillion classified State Department cables to the world via Wikileaks, State Department would not confirm any of the cables as genuine, blocks access inside Foggy Bottom where people do have security clearances and could thus legally read the cables, and takes away my security clearance for linking to one of those cables on this blog.

    Then those bad, bad boys and girls at the ACLU file a Freedom of Information Act (FOIA) request and lawsuit seeking twenty-three cables that had been previously disclosed by WikiLeaks and widely distributed online and in the press.

    And what does the State Department do?

    It released eleven of the ACLU-requested documents, with redactions. That means that all you or anyone on earth need to do is compare the State-released version with the Wikileaks-released version, and you’ll know exactly what information is, er, was considered secret.

    You could do a lot of Googling around to compare the two sets of documents, but if you don’t want to, someone has already made the pairing for you.

    In the words of the ACLU:

    The State Department has reversed course and acknowledged that at least some of the cables can be released to the public without harming national security. That’s what we’ve been saying all along (and, according to reports, what some government officials have been saying too).

    The State Department’s response is particularly astounding because it reveals a roadmap of the government’s classification decisions. The information released by the State Department is perhaps more sensitive than the cables themselves, revealing what the government thinks the public should and should not be able to see.



    Even the staid New York Times was mildly gobsmacked:

    Of course, by redacting passages the public is free to read, the State Department has called attention to what it considers the most diplomatically touchy parts of cables. At a glance, its reasoning is not obvious.



    ACLU’s conclusion after comparing the redactions with the full texts is not pretty:

    At its most harmless, [State’s] selectivity reveals a penchant for superficially advancing national image at the cost of transparency. At its worst, it is yet another instance of the government making false claims of secrecy to avoid legal and political accountability.



    And special thanks to the ACLU for mentioning my own struggles with State; it is comforting to know they have my back.



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    Blocking Objectionable Web Sites: Tehran and State Department

    December 8, 2011 // Comments Off on Blocking Objectionable Web Sites: Tehran and State Department

    Iran has blocked ”Virtual Embassy Tehran”, within 24 hours of its launch by the US, accusing the State Department of “meddling” in the internal affairs of the country.

    The State Department launched the virtual online embassy Tuesday to provide (fairly bland) information to Iranians, despite the lack of diplomatic ties, and to “work as a bridge between the American and Iranian people.”

    Accusing the US of “meddling” in the internal affairs of the country, Iran barred the website. US officials responded they were expecting this move by the Iranian government. A State spokesperson said “Many Iranians do have software and virtual private networks that allow them to work around these kinds of blocks. I think, for example, there are millions of Iranians who have access to Facebook and they”ll also be able to use these so-called VPNs to access this site.”

    It is indeed a sad State of affairs when governments block information they find politically objectionable.

    Oh yes, and this:

    The Department of State continues to block access on its own networks to any Wikileaks-related website, including select news and comment sites that have commented about Wikileaks. The cables released by WikiLeaks are of course available to anyone sober enough to operate an internet connection. But, according to the ACLU, the government has spent the last year insisting, over and over, that the WikiLeaks cables are still classified, going so far as interrogating a State Department employee (me) who linked to one of the cables from his personal blog. Now, the State Department has reversed course and acknowledged without comment that at least some of the cables can be released to the public without harming national security.

    The use of specialized software and VPNs that State recommends to Iranians to circumvent the firewall block is prohibited by the State Department to its own employees to get around State’s own firewall blocks.

    Also, a regular reader, whom we’ll call, what the hell, “Popeye,” reports that my blog is now blocked on the Navy’s unclassified network.

    Of course, sailors, State Department officials and Iranians worldwide can still watch this:




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