President Obama on Monday lifted the ban he imposed two years ago on military trials for detainees at the Guantanamo Bay prison, ending his bid to move most terrorism trials to civilian courts and pushing his already busted deadline for shuttering the island prison indefinitely forward.
The reversal came as Defense Secretary Robert M. Gates visited Afghanistan and indicated that he was willing to keep a presence of U.S. forces in the war-torn country beyond the Obama administration’s 2014 pullout goal, highlighting again the difficulty the president has had moving from the policies of President George W. Bush.
Mr. Obama announced the Guantanamo decision in an executive order that also sets forth a periodic review process for detainees who have not been charged or convicted but are still considered threats to the U.S.
White House aides stressed that Mr. Obama remains committed to closing the prison, which he has described as a key recruiting tool for terrorist groups, and pursuing some cases in civilian courts. Mr. Obama vowed during the campaign to close the prison by the end of 2009, his first year in office.
All of this responds to Obama’s archives speech of May 2009, where he walked back his more progressive January 2009 position but tried to retain a bulwark of detention and prosecution principles for terrorism detainees. Since then, Congress has passed laws blocking the closure of Gitmo by preventing the transfer of detainees by the executive branch. House and Senate Republicans (McKeon and Graham) are expected to introduce bills further blocking detainee access to U.S. courts in the coming week.
On a conference call Monday, Obama senior advisors said the president remains committed to closing Gitmo by diminishing the number of detainees held there. But the moves announced today could have the opposite effect, admits a senior White House official. The Bush and Obama administrations have faced repeated habeas corpus challenges to their detention of alleged terrorists at Gitmo. Last I checked, detainees bringing habeas cases were winning by a 4-to-1 ratio. By increasing due process at Gitmo, the new measures make it more likely judges will defer to the executive branch and rule against detainees claiming they are being held unfairly at Gitmo. One administration official argued that judges would not be affected by the new procedures.
The habeas releases remain the only way that Gitmo’s numbers can decrease these days. The administration is still debating how to comply with the Congressional ban, but as long as it is in place even a detainee who uses his new due process rights to challenge his detention in military commissions and wins will stay in Gitmo forever… or until Congress changes its mind about closing it down.
Who wins in this? Do we think that “American system of justice” means whatever it is Americans do, as long as some court-like trappings are present? The order acknowledges that the “privilege of the writ of habeas corpus” is available to inmates, but also sets up a routine for holding prisoners indefinitely without charges (what the order calls “the executive branch’s continued, discretionary exercise of existing detention authority”). In statements today, Obama, Attorney General Eric Holder, and Secretary of Defense Robert Gates all mentioned how highly they thought of the federal court system. Gates said,
For years, our federal courts have proven to be a secure and effective means for bringing terrorists to justice. To completely foreclose this option is unwise and unnecessary.
So this order doesn’t “completely foreclose” on the rule of law—is a partial foreclosure supposed to count as a moral stand? Given all the nice things the Administration has to say about the federal court system, one would think that it might find it wise, and even necessary, to actually use it a bit more. Instead, the statements seem more concerned to note that the President is not giving up any options or powers—as if bringing accused murderers to court were a prerogative, rather than an obligation. No doubt, Republicans, and some Democrats, have made it hard for Obama to close Guantánamo. But it might be easier if he wanted to do it; the order today makes it sound like he considers it a somewhat useful place. It is not.
Speaking of questionable detention measures: Can someone in the Administration explain, slowly and clearly, why Bradley Manning, the soldier accused of leaking the WikiLeaks cables, is required to stand naked in front of his cell in the morning and sleep naked, ostensibly for his own protection? The military’s explanations so far—that he could somehow harm himself with underwear (though he is not on suicide watch and is being monitored by video) so he can’t sleep in any, and then there is just no time for him to put underwear on in the morning before they get him out of the cell—are just not plausible. (By coincidence, a case about Americans being strip-searched after being arrested for minor offenses may be coming before the Supreme Court.) A naked man who hasn’t been convicted of a crime—that shouldn’t be what American justice looks like.
Only two years into his presidency, Barack Obama has learned that there are no easy answers to dealing with captured transnational terrorists. It’s easy to create sound bites decrying the evils of holding terrorists at Gitmo, and it’s easy to create sound bites about how awful it is to try them in military tribunals (even though that’s where illegal enemy combatants should rightfully be tried), but it’s very hard to change reality. So bowing to reality, Obama has authorized the re-start of military trials for captured terrorists.
The Obama administration’s anti-war campaign rhetoric and naive first-year promises continue to collide with reality. And happily, reality continues to prevail. The Obama administration has finally admitted, I think, that the Bush administration’s decision to detain al Qaeda operatives and terrorists at Gitmo was sensible. It wasn’t driven by some bizarre desire to mistreat terrorists, but instead was the best way to address security concerns without keeping them in Afghanistan or inside the United States.
It also turns out that the military commission trials too were a sensible decision. Civilian trials threaten the revelation of valuable intelligence in a covert war where hostilities are still ongoing. Military commissions allow a fair trial to be held but one that does not blow our wartime advantages. Meanwhile, the Obama administration’s track record has been poor — it was lucky to get the limited convictions that it has. Obama folks owe an apology to the Bush administration for their unjust criticism of military trials.
It should also be noted that Obama did not come to this turnabout after reasoned consideration alone. I think there are significant figures in the administration that would still love to close Gitmo tomorrow and give every terrorist the same exact trials reserved for Americans who commit garden-variety crimes. Congress dragged the administration kicking and screaming to this destination by cutting off funds for the transfer of any detainees from Gitmo to the U.S. This effectively used Congress’s sole power of the purse to prevent Obama from making a grievous national security mistake. The new Congress should continue to keep the ban in its Defense spending bills to prevent Obama from another 180 degree turn.
Conservatives committed to burnishing Bush’s legacy were quick to claim vindication, arguing that the decision proved that the detention camp at Gitmo was a good idea all along. But Obama’s decision doesn’t prove this at all.
The administration also released an executive order outlining its new indefinite detention policy. Not much has changed from when I first wrote about it a few months ago — the new procedures formally adopt what Karen Greenberg referred to as “the heart of Bush policy” while making the process marginally fairer by allowing individuals detained indefinitely who have lost their habeas cases to be represented by counsel during periodic reviews every six months.
The president and the secretary of defense also reiterated the importance of trying terrorists in federal courts, but they might as well be shouting into the wind. The ban on funds for transfers of Gitmo detainees to federal court won’t be going away any time soon, but it’s worth remembering that ban actually ensures that fewer terrorists would be brought to justice than would be otherwise. Only six terrorists have ever been convicted in military commissions, compared to hundreds in federal court.
Failing to close Gitmo remains the most visible symbol of the president’s failure to reverse the trajectory of Bush-era national security policy, but the reality, as Glenn Greenwald notes this morning, is that most of the substantive decisions adopting Bush policies were made long ago. The new policies don’t amount to a “reversal” on the issue of whether Gitmo should be closed. Republicans are eager to portray Gitmo staying open as a “vindication” of the prison’s usefulness, but the fact that the indefinite detention order is limited to detainees currently at Gitmo means that the administration won’t be reopening the facility to new detainees, as Bush apologists have suggested doing.
Gitmo isn’t open because the administration doesn’t want to close it, although its efforts in this area are ripe for criticism. It’s still open because Republicans in Congress successfully frightened Democrats in Congress out of giving the administration the necessary funds to close it when they had control of Congress. In the process, they’ve managed to obscure the original reason detainees were brought to Gitmo — to keep them away from the scrutiny of the federal courts. Once the Supreme Court held that federal courts had jurisdiction and even habeas rights, the facility was useless for that purpose. Republicans are determined to keep it open not because we can’t safely imprison terrorists in the U.S., but because they feel its ongoing presence vindicates Bush in the eyes of history.
The Army announced 22 additional charges on Wednesday against Pfc. Bradley Manning, the military intelligence analyst who is accused of leaking a trove of government files to WikiLeaks a year ago.
The new charges included “aiding the enemy”; wrongfully causing intelligence to be published on the Internet, knowing that it was accessible to the enemy; multiple counts of theft of public records, transmitting defense information and computer fraud. If he is convicted, Private Manning could be sentenced to life in prison.
“The new charges more accurately reflect the broad scope of the crimes that Private First Class Manning is accused of committing,” said Capt. John Haberland, an Army spokesman.
The charges provide new details about when prosecutors believe that Private Manning downloaded copies of particular files from a classified computer system in Iraq. For example, the charges say he copied a database of more than 250,000 diplomatic cables between March 28 and May 4, 2010.
Most of the charges add little to the ones already filed, but the most serious new charge is for “aiding the enemy,” a capital offense under Article 104 of the Uniform Code of Military Justice. Although military prosecutors stated that they intend to seek life imprisonment rather than the death penalty for this alleged crime, the military tribunal is still empowered to sentence Manning to death if convicted.
Article 104 — which, like all provisions of the UCMJ, applies only to members of the military — is incredibly broad. Under 104(b) — almost certainly the provision to be applied — a person is guilty if he “gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly” (emphasis added), and, if convicted, “shall suffer death or such other punishment as a court-martial or military commission may direct.” The charge sheet filed by the Army is quite vague and neither indicates what specifically Manning did to violate this provision nor the identity of the “enemy” to whom he is alleged to have given intelligence. There are, as international law professor Kevin Jon Heller notes, only two possibilities, and both are disturbing in their own way.
In light of the implicit allegation that Manning transmitted this material to WikiLeaks, it is quite possible that WikiLeaks is the “enemy” referenced by Article 104, i.e., that the U.S. military now openly decrees (as opposed to secretly declaring) that the whistle-blowing group is an “enemy” of the U.S. More likely, the Army will contend that by transmitting classified documents to WikiLeaks for intended publication, Manning “indirectly” furnished those documents to Al Qaeda and the Taliban by enabling those groups to learn their contents. That would mean that it is a capital offense not only to furnish intelligence specifically and intentionally to actual enemies — the way that, say, Aldrich Ames and Robert Hanssen were convicted of passing intelligence to the Soviet Union — but also to act as a whistle-blower by leaking classified information to a newspaper with the intent that it be published to the world. Logically, if one can “aid the enemy” even by leaking to WikiLeaks, then one can also be guilty of this crime by leaking to The New York Times.
The dangers of such a theory are obvious. Indeed, even the military itself recognizes those dangers, as the Military Judges’ Handbook specifically requires that if this theory is used — that one has “aided the enemy” through “indirect” transmission via leaks to a newspaper — then it must be proven that the “communication was intended to reach the enemy.” None of the other ways of violating this provision contain an intent element; recognizing how extreme it is to prosecute someone for “aiding the enemy” who does nothing more than leak to a media outlet, this is the only means of violating Article 104 that imposes an intent requirement.
But does anyone actually believe that Manning’s intent was to ensure receipt of this material by the Taliban, as opposed to exposing for the public what he believed to be serious American wrongdoing and to trigger reforms?
The “aiding the enemy” charge should come as no surprise to anyone, and in fact we had predicted it would come down to treason last winter. Despite the poo-pooing and endless protestations of some of Manning’s most vocal and frequently comical defenders, there is one object lesson here which can not be repeated often enough: the U.S. Military has zero sense of humor when it comes to things like this.
Assuming for the moment that this winds up in a conviction – and the Army is certainly acting like they’re playing a pretty solid hand at this point – the situation only becomes more explosive and holds the potential to be a huge thorn in the side of the Obama administration for months or years to come. Aiding the enemy during a time of war is generally considered one of the surest paths to a firing squad for obvious reasons, but it will leave the President in a sticky position.
If the military decides to drag Manning out back and shoot him – a distinct possibility – a significant portion of Barack Obama’s base will be in an uproar. They tend to be opposed to the death penalty in general, for starters. But Manning has also become something of a folk hero on the Left, allegedly helping – albeit indirectly – Julian Assange to “stick it to the man” and expose the various perceived evils of the American government. Allowing him to be executed would be a huge black eye for Obama with his base.
But if he steps in and commutes the sentence – assuming there is a legal mechanism for him to do so – then he will be seen as undercutting his own military establishment and substituting his judgment for their established practices and discipline. (Not to mention earning the tag of “going soft on traitors,” always a sure winner in an election year.)
Of course, the Army could let Obama off the hook and simply send Manning to Leavenworth for the rest of his natural life, but that’s not a great option either in terms of the political optics. Manning’s cheerleaders are already complaining about the “horrific” conditions he’s being held under and it’s only going to get worse after his conviction. (He might even lose his cable TV, library and newspaper privileges and private exercise yard.)
If convicted on the Big Count, Manning will never, ever be able to be transferred into the general military prison population and will, in all likelihood, spend the rest of his life in solitary confinement. Of all the scoundrels in legal history, traitors are probably the most unpopular with the enlisted rank and file. Dumped into a large crowd, Manning’s safety would be virtually impossible to assure. And that would leave the President with a “folk hero” of the Left locked up under the same – or worse – conditions than he’s in now for the rest of his time in office. This would be a burr under Obama’s saddle which would never go away.
It’s been a long and winding road, but it looks like we may be coming to the end of it. The Army moves at their own pace, as they should, but if they’ve filed charges now they probably feel like their case is just about ripe for presentation. Look for a court martial date to be announced in the coming weeks or months.
While we can’t be sure, I suspect the reference in Charge II, Specification 3 is to this information about the surveillance of Assange.
If I’m right about that, then it means the government is charging Manning with providing WikiLeaks with information about the surveillance being conducted, in real time, on WikiLeaks. And it would make it easy to prove both that “the enemy” got the information and that Manning intended the “enemy” to get it.
So if the government maintains that, by virtue of being an intelligence target, WikLeaks qualifies as an “enemy,” then they can also argue that Manning intentionally gave WikiLeaks information about how the government was targeting the organization. Which would make their aiding the enemy charge easy to prove.
But I also think that opens up the government to charges that it is criminalizing democracy.
As I noted above, the government’s own report on WikiLeaks describes its purpose to be increasing the accountability of democratic or corrupt governments. The government, by its own acknowledgment, knows that WikiLeaks’ intent is to support democracy. Furthermore, while the intelligence report reviews the debate about whether WikiLeaks constitutes protected free speech or criminal behavior (without taking a side in that debate), in a discussion of WikiLeaks’ efforts to verify an NGIC report on the battle of Fallujah, the report acknowledges that WikiLeaks did the kind of thing journalists do.
Wikileaks.org and some other news organizations did attempt to contact the NGIC personnel by e-mail or telephone to verify the information.
[snip]
Given the high visibility and publicity associated with publishing this classified report by Wikileaks.org, however, attempts to verify the information were prudent and show journalist responsibility to the newsworthiness or fair use of the classified document if they are investigated or challenged in court.
So while the military, according to its own report, describes WikiLeaks as a threat to the armed forces, it also acknowledges that WikiLeaks has behaved, at times, as a journalistic organization.
Mind you, all of this is simply a wildarsed guess about what the government may mean with its invocation of the “enemy.” But if I’m right, it would mean the government was threatening Manning with life in prison because he leaked information about the government’s surveillance of what it admits is an entity that engages in journalistic behavior.
Personally, though, I don’t think it would be that difficult a position for the President. The number of people complaining about Manning’s treatment can basically be whittled down to the Glenn Greenwald segment of the President’s progressive base, and many of them don’t seem to understand that Manning’s rights as a military prisoner being prosecuted under the Uniform Code Of Military Justice are distinctly different from the rights he would be entitled to as a civilian defendant in a civilian court. Additionally, many of them don’t seem to think that he did anything wrong even if the charges against him are true. I dare to say that they do not represent a majority of the Democratic Party, and certainly not a majority of the country. If Bradley Manning is convicted of aiding the enemy, then I doubt many Americans are going to care what happens to him.
Pentagon and military officials also report that investigators have made no direct link between Manning and WikiLeaks founder Julian Assange.
This has been the case for months, despite digging by federal investigators in all directions, and it makes the probability that any charges will ever be sustained against Wikileaks, Julian Assange, or any related individuals, seem very remote indeed.
On Wednesday March 2, 2011, PFC Manning was told that his Article 138 complaint requesting that he be removed from Maximum custody and Prevention of Injury (POI) Watch had been denied by the Quantico commander, Colonel Daniel J. Choike. Understandably frustrated by this decision after enduring over seven months of unduly harsh confinement conditions, PFC Manning inquired of the Brig operations officer what he needed to do in order to be downgraded from Maximum custody and POI. As even Pentagon Press Secretary Geoff Morrell has stated, PFC Manning has been nothing short of “exemplary” as a detainee. Additionally, Brig forensic psychiatrists have consistently maintained that there is no mental health justification for the POI Watch imposed on PFC Manning. In response to PFC Manning’s question, he was told that there was nothing he could do to downgrade his detainee status and that the Brig simply considered him a risk of self-harm. PFC Manning then remarked that the POI restrictions were “absurd” and sarcastically stated that if he wanted to harm himself, he could conceivably do so with the elastic waistband of his underwear or with his flip-flops.
Without consulting any Brig mental health provider, Chief Warrant Officer Denise Barnes used PFC’s Manning’s sarcastic quip as justification to increase the restrictions imposed upon him under the guise of being concerned that PFC Manning was a suicide risk. PFC Manning was not, however, placed under the designation of Suicide Risk Watch. This is because Suicide Risk Watch would have required a Brig mental health provider’s recommendation, which the Brig commander did not have. In response to this specific incident, the Brig psychiatrist assessed PFC Manning as “low risk and requiring only routine outpatient followup [with] no need for … closer clinical observation.” In particular, he indicated that PFC Manning’s statement about the waist band of his underwear was in no way prompted by “a psychiatric condition.”
While the commander needed the Brig psychiatrist’s recommendation to place PFC Manning on Suicide Risk Watch, no such recommendation was needed in order to increase his restrictions under POI Watch. The conditions of POI Watch require only psychiatric input, but ultimately remain the decision of the commander.
Given these circumstances, the decision to strip PFC Manning of his clothing every night for an indefinite period of time is clearly punitive in nature. There is no mental health justification for the decision. There is no basis in logic for this decision. PFC Manning is under 24 hour surveillance, with guards never being more than a few feet away from his cell. PFC Manning is permitted to have his underwear and clothing during the day, with no apparent concern that he will harm himself during this time period. Moreover, if Brig officials were genuinely concerned about PFC Manning using either his underwear or flip-flops to harm himself (despite the recommendation of the Brig’s psychiatrist) they could undoubtedly provide him with clothing that would not, in their view, present a risk of self-harm. Indeed, Brig officials have provided him other items such as tear-resistant blankets and a mattress with a built-in pillow due to their purported concerns.
This is just vile. The former brig commander, James Averhart, violated military rules by putting Manning on suicide watch as punishment, and was subsequently replaced by Denise Barnes. Now she’s stripping him naked to punish him for a sarcastic quip. Who is she, Nurse Ratched? Abusing someone’s mental health classification in order to subject them to torture “for their own good” is sick and sadistic, reminiscent of Soviet gulags.
First, Lt. Brian Villiard, a Marine spokesman, confirmed that Manning’s clothes were taken from him, though he didn’t give many details of the incident, except to say that it wasn’t done for punitive reasons.
“It would be inappropriate for me to explain it,” Villiard told the New York Times. “I can confirm that it did happen, but I can’t explain it to you without violating the detainee’s privacy.”
This isn’t the first time that Manning’s lawyer has asserted that the private suffered abuse in prison, and it likely won’t be the last. It’s typical of attorneys to claim that their clients are mistreated in prison, and in a case like Manning’s, these types of allegations will be eaten up by his supporters.
But based on Villiard’s statement, and the timeline of the incident, it sounds like Manning’s clothes may have been taken from him owing to suicide concerns. The Army private was previously put on suicide watch in prison. His reaction to the new charges against him could have military officials apprehensive about his mental state.
As Glenn Greenwald notes, there really only seems to be one purpose behind what Manning is being subjected to:
Let’s review Manning’s detention over the last nine straight months: 23-hour/day solitary confinement; barred even from exercising in his cell; one hour total outside his cell per day where he’s allowed to walk around in circles in a room alone while shackled, and is returned to his cell the minute he stops walking; forced to respond to guards’ inquiries literally every 5 minutes, all day, everyday; and awakened at night each time he is curled up in the corner of his bed or otherwise outside the guards’ full view. Is there anyone who doubts that these measures — and especially this prolonged forced nudity — are punitive and designed to further erode his mental health, physical health and will? As The Guardian reported last year, forced nudity is almost certainly a breach of the Geneva Conventions; the Conventions do not technically apply to Manning, as he is not a prisoner of war, but they certainly establish the minimal protections to which all detainees — let alone citizens convicted of nothing — are entitled.
Moreover, Greenwald points out, correctly I think, the media seems to be giving the Obama Administration a pass here:
I’ll say this again: just fathom the contrived, shrieking uproar from opportunistic Democratic politicians and their loyalists if it had been George Bush and Dick Cheney — on U.S. soil — subjecting a whistle-blowing member of the U.S. military to these repressive conditions without being convicted of anything, charging him with a capital offense that statutorily carries the death penalty, and then forcing him to remain nude every night and stand naked for inspection outside his cell. Feigning concern over detainee abuse for partisan gain is only slightly less repellent than the treatment to which Manning is being subjected.
Indeed. It’s understandable, to be honest, why the right wouldn’t care all that much about how Private Manning is being treated. If this were happening under a Republican, though, the left would be united in outrage. Now, their silence is telling
Make no mistake about it. I do not consider Bradley Manning a hero in any sense of the word. Even if it were the case that much of the material that Manning stole from military computers should not have been classified, or really wasn’t all that important (and much of it wasn’t in the end), that isn’t a decision that a Private in the Army has a right to make. If the charges against him are true, he violated orders, accessed systems he had no right to access, and stole information that he had no right to take off base. If he’s convicted of these charges, he deserves to be punished to the fullest extent of the law. While he’s awaiting trial, though, and even after he’s convicted, he still must be treated humanely and, at present, Manning is receiving worse treatment than a Prisoner Of War would, and the only purpose behind it seems to be to break him psychologically. That’s simply unacceptable.
But can this treatment really be justified? There are two points to address on this front.
First and most simply put, Manning made the comment about being able to kill himself with his underwear, sarcastic or not. Can you imagine what would be said if the brig commander did nothing and then he actually did turn up dead in his cell by his own waistband? It would be a movable feast for the media and several careers would come to an abrupt end. How does the commander ignore something like that?
The second point is a bit more complicated and far less clear, and one that we’ve touched on here in the past. It boils down to some of the fundamental differences between civilian society and the military community. Just as civilians, used to all their freedoms of free speech, etc. don’t understand the restrictions on military personnel, those familiar with the civilian justice system are frequently shocked by many of the “unofficial” aspects of the U.C.M.J. Lots of things like this go on all the time in the military, or at least they used to back in the day. But normally you don’t have the civilian press watching and reporting on it.
Does that make it right? I leave that to the judgment of the reader.
Also, life in the military in general is just a bit more physical and harsh than in the civilian world. A lot of things happen which would probably shock many of you who have never served. In the Navy, for example, there is an old tradition of an initiation rite of passage the first time a sailor crosses the equator on a war ship. It is the time when you graduate from being a “pollywog” (or just “wog” for short) to being a “shellback.” Trust me, it’s an ordeal, usually lasting 24 hours or more.
The third time I made the passage, two enlisted men wound up in sick bay with broken arms. Everyone got to experience the joys of crawling through plastic chutes filled with garbage, rotting food and bilge water, all the while being “herded” by shellbacks wielding foot long lengths of fire hose, loving called, “shillelaghs.” (During my own initiation it took more than a week before the bruises finally faded.) And this is all for your friends who have done nothing wrong.
I’ll leave it for one of the veteran submarine sailors to tell you about the grand old tradition of having your dolphins “tacked on” if they wish to do so in comments.
So I suppose our final question is, does any of this make it acceptable for Manning to be treated in this fashion, either to cover the brig commander’s butt or for the sake of teaching a lesson to somebody mouthing off to their superiors? I really don’t know. Maybe we do need to shine a light on this and review military procedures, both official and “under the covers.” But I do know that life in the military community is a lot different than in the civilian world, and having lived it for a number of years myself, this story honestly didn’t shock me at all.
There is only one word to describe the treatment of this model prisoner: sadism. Glenn Greenwald has been following the case closely and has two disturbing must-reads here and here. We all hoped that under Obama, brutal treatment of military prisoners and lies about it would end. In this case, they haven’t.
I understand that Bradley Manning has probably done something very wrong, for which, if guilty, he deserves a hefty jail sentence and the contempt of his fellow citizens. But this is not what a decent country does to its citizens.
After a tip from Crowdleaks.org, The Tech Herald has learned that HBGary Federal, as well as two other data intelligence firms, worked to develop a strategic plan of attack against WikiLeaks. The plan included pressing a journalist in order to disrupt his support of the organization, cyber attacks, disinformation, and other potential proactive tactics.
Update:
The Tech Herald was able to get in touch with Glenn Greenwald for his reaction to being singled out in the WikiLeaks proposal. He called the report creepy and disturbing. Moreover, he commented that the suggestions for dealing with WikiLeaks, along with the assumption that the organization could be undermined, were “hard to take seriously.”
The listed mitigations, such as disinformation or submitting false documents, have been discussed before. In 2008, the Pentagon had similar ideas, so that aspect of the document was nothing new.
Greenwald, as a journalist, is a prolific writer on media topics. He is a harsh critic of political figures and the mainstream media. The suggestion made by the proposal that he would pick career over cause is “completely against” what he is about, he told us.
“The only reason I do what I do is because im free to put cause before career,” he said.
Pointedly, he reminded us that his work includes taking aim at political figures, which could be a source of professional leverage with scoops or favors, as well as news organizations who could offer him gainful employment. None of these actions paints a picture of a man who would pick career over his passion.
Update 2:
WikiLeaks is hosting an official mirror of the sixth and final draft of the report. You can see a copyhere.
Update 3:
Palantir Technologies has severed all ties with HBGary Federal and issued an apology to reporter Glenn Greenwald. More details here.
Update 4:
Berico Technologies has cut ties as well. More information is here.
According to a report in the Tech Herald, three security firms recently pitched the Bank of America with a plan to take down WikiLeaks. If the documents at the core of the story are legit — and as Andy Greenberg of Forbes notes, “their level of detail would require immense effort on the part of counterfeiters” — the companies come off as Keystone Kops.
The most interesting detail is that the firms involved — HBGary Federal, Palantir Technologies, and Berico Technologies — placed a lot of emphasis on the pro-WikiLeaks blogger Glenn Greenwald, arguing that “Without the support of people like Glenn wikileaks would fold,” so “It is this level of support that needs to be disrupted.” The firms are confident that this can be done, since “most of them if pushed will choose professional preservation over cause, such is the mentality of most business professionals.”
The source of the documents is a massive trove of HBGary emails that was seized and released by Anonymous. The backstory behind that is pretty fascinating in itself.
A consortium of national security contractors, led by Palantir Technology, seems to have been shopping a counter-WikiLeaks strategy. This slide is about neutralizing Glenn Greenwald:
— Glenn was critical in the Amazon to OVH transition
— It is this level of support that needs to be disrupted
— These are established professionals that have a liberal bent, but ultimately most of them if pushed will choose professional preservation over cause, such is the mentality of most business professionals.
— Without the support of people like Glenn, Wikileaks would fold
A bizarre plan for an attack on the whistle-blowing site WikiLeaks and journalists construed as sympathetic to it — first reported by the Tech Herald — clearly targets Salon’s Glenn Greenwald, saying that his “level of support” for WikiLeaks “needs to be disrupted.” The report (you can download the purported final draft here) is listed as an “overview by Palantir Technologies, HBGary Federal and Berico Technologies,” and according to a string of e-mails also leaked, was developed following a request from Hunton and Williams, a law firm that represents, among others, Bank of America.
Bank of America is the presumed next target of WikiLeaks, and has reportedly been bracing for what’s to come.
The leaked report singles out other journalists, as well, and suggests that “these are established professionals that have a liberal bent, but ultimately most of them if pushed will choose professional preservation over cause …” And goes on: “Without the support of people like Glenn wikileaks would fold.”
Now aside from the predictable, but nevertheless rather shocking detail, that these security firms believed the best way to take WikiLeaks out was to push Glenn to stop supporting them, what the fuck are they thinking by claiming that Glenn weighs “professional preservation” against “cause”? Could they be more wrong, painting Glenn as a squeamish careerist whose loud support for WikiLeaks (which dates back far longer than these security firms seem to understand) is secondary to “professional preservation”? Do they know Glenn is a journalist? Do they know he left the stuffy world of law? Have they thought about why he might have done that? Are they familiar at all with who Glenn is? Do they really believe Glenn became a household name–to the extent that he did–just in December?
I hope Bank of America did buy the work of these firms. Aside from the knowledge that the money would be–to the extent that we keep bailing out Bank of America–taxpayer money, I’d be thrilled to think of BoA pissing away its money like that. The plan these firms are pushing is absolutely ignorant rubbish. They apparently know almost nothing about what they’re pitching, and have no ability to do very basic research.
Which is precisely the approach I’d love to see BoA use to combat whatever WikiLeaks has coming its way.
My initial reaction to all of this was to scoff at its absurdity. Not being familiar with the private-sector world of internet security, I hadn’t heard of these firms before and, based on the quality of the proposal, assumed they were just some self-promoting, fly-by-night entities of little significance. Moreover, for the reasons I detailed in my interview with The Tech Herald — and for reasons Digby elaborated on here — the very notion that I could be forced to choose “professional preservation over cause” is ludicrous on multiple levels. Obviously, I wouldn’t have spent the last year vehemently supporting WikiLeaks — to say nothing of aggressively criticizing virtually every large media outlet and many of their leading stars, as well as the most beloved political leaders of both parties — if I were willing to choose “career preservation over cause.”
But after learning a lot more over the last couple of days, I now take this more seriously — not in terms of my involvement but the broader implications this story highlights. For one thing, it turns out that the firms involved here are large, legitimate and serious, and do substantial amounts of work for both the U.S. Government and the nation’s largest private corporations (as but one example, see this email from a Stanford computer science student about Palantir). Moreover, these kinds of smear campaigns are far from unusual; in other leaked HB Gary emails, ThinkProgress discovered that similar proposals were prepared for the Chamber of Commerce to attack progressive groups and other activists (including ThinkProgress). And perhaps most disturbing of all, Hunton & Williams was recommended to Bank of America’s General Counsel by the Justice Department — meaning the U.S. Government is aiding Bank of America in its defense against/attacks on WikiLeaks.
That’s why this should be taken seriously, despite how ignorant, trite and laughably shallow is the specific leaked anti-WikiLeaks proposal. As creepy and odious as this is, there’s nothing unusual about these kinds of smear campaigns. The only unusual aspect here is that we happened to learn about it this time because of Anonymous’ hacking. That a similar scheme was quickly discovered by ThinkProgress demonstrates how common this behavior is. The very idea of trying to threaten the careers of journalists and activists to punish and deter their advocacy is self-evidently pernicious; that it’s being so freely and casually proposed to groups as powerful as the Bank of America, the Chamber of Commerce, and the DOJ-recommended Hunton & Williams demonstrates how common this is. These highly experienced firms included such proposals because they assumed those deep-pocket organizations would approve and it would make their hiring more likely.
But the real issue highlighted by this episode is just how lawless and unrestrained is the unified axis of government and corporate power. I’ve written many times about this issue — the full-scale merger between public and private spheres — because it’s easily one of the most critical yet under-discussed political topics. Especially (though by no means only) in the worlds of the Surveillance and National Security State, the powers of the state have become largely privatized. There is very little separation between government power and corporate power. Those who wield the latter intrinsically wield the former. The revolving door between the highest levels of government and corporate offices rotates so fast and continuously that it has basically flown off its track and no longer provides even the minimal barrier it once did. It’s not merely that corporate power is unrestrained; it’s worse than that: corporations actively exploit the power of the state to further entrench and enhance their power.
That’s what this anti-WikiLeaks campaign is generally: it’s a concerted, unified effort between government and the most powerful entities in the private sector (Bank of America is the largest bank in the nation). The firms the Bank has hired (such as Booz Allen) are suffused with the highest level former defense and intelligence officials, while these other outside firms (including Hunton & Williams and Palantir) are extremely well-connected to the U.S. Government. The U.S. Government’s obsession with destroying WikiLeaks has been well-documented. And because the U.S. Government is free to break the law without any constraints, oversight or accountability, so, too, are its “private partners” able to act lawlessly. That was the lesson of the Congressional vesting of full retroactive immunity in lawbreaking telecoms, of the refusal to prosecute any of the important Wall Street criminals who caused the 2008 financial crisis, and of the instinctive efforts of the political class to protect defrauding mortgage banks.
Deserting and embarrassing their GOP House leadership, 26 Republicans–including several members of the Tea Party Caucus–bolted Tuesday night to join Democrats in a surprise rejection of a centerpiece of Bush-era powers to fight terrorism that curbed American civil liberties.
The House Republican leaders had expected an easy victory in their efforts to reauthorize three expiring powers under the PATRIOT Act–among them, allowing ”roving wiretaps” and searches of people’s medical, banking, and library records. It is likely the GOP will succeed in a later vote, but Tuesday night’s rebuff sent a strong message.
By a 277-148 margin, the bill fell just shy of the two-thirds majority needed to pass the House under suspension of the rules, representing somewhat of an embarrassment for House Republicans on a matter of national security. Republicans were accusing Democrats, many of whom had supported the extension of the provisions in the 111th Congress, of hypocrisy.
“Believe me, House leadership was caught off guard,” says one Republican committee aide. “They really thought that they had everybody contained. They knew there would be a few defections, but they did not expect this group to try and out–Tea Party one another. The Ron Paul influence, especially on civil liberties, is stronger than you think.”
Monday’s vote was proffered under a suspension of the rules, which requires a two-thirds majority. Other House GOP aides tell NRO that the extension will likely brought up again via “regular orders” in the coming weeks; this requires a simple majority, and they expect it to pass.
The White House, one aide points out, will now be forced to work with Congress, especially with three provisions set to expire on February 28. The House GOP would like to extend the provisions until December 8; Senate Democrats and the White House would prefer extending the provisions through 2013, in order to take it off of the table for the election.
With the clock ticking, Republicans believe they can set the stakes, regardless of how they stumbled on the initial vote. On Monday, an aide close to the process notes, many Democrats who are supportive of a one-year extension voted against it, in order to stand with those who would like to see the provisions extended through 2013. So while Republicans will be whipping hard, to be sure, Democrats, too, he predicts, will be having their own internal debate about a short-term extension.
The three amendments voted on last night have been extensively modified over the years and now include significant new safeguards, including substantial court oversight. They include:
Roving Surveillance Authority: Roving wiretaps have been used routinely by domestic law enforcement in standard criminal cases since the mid-1980s. However, national security agents did not have this garden-variety investigative tool until the passage of the PATRIOT Act in 2001. Section 206 of the PATRIOT Act allows law enforcement, after approval from the FISA court, to track a suspect as he moves from cell phone to cell phone. The government must first prove that there is “probable cause” to believe that the target is a foreign power or an agent of a foreign power. It further requires continuous monitoring by the FISA court and substantial reporting requirements to that Court by the government.
Business Record Orders: Domestic law enforcement, working with local prosecutors, routinely rely on business records through the course of their investigations, oftentimes through the use of a subpoena. However, national security agents did not have the same authority to acquire similar evidence prior to the passage of Section 215 of the PATRIOT Act. This provision allows law enforcement, with approval from the FISA court, to require disclosure of documents and other records from businesses and other institutions (third parties) without a suspect’s knowledge. The third-party recipients of 215 orders can even appeal any order to the FISA court.
The Lone Wolf Provision: Section 6001 of the Intelligence Reform and Terrorism Prevention Act allows law enforcement to track non-U.S. citizens acting alone to commit acts of terrorism that are not connected to an organized terrorist group or other foreign power. While the FBI has confirmed that this section has never actually been used, it needs to be available if the situation arises where a lone individual may seek to do harm to the United States.
At least 36 known terrorist plots have been foiled since 9/11. The United States continues to face a serious threat of terrorism. National security investigators continue to need the above authorities to track down terror leads and dismantle plots before the public is any danger. Opponents of these provisions have produced little evidence of any PATRIOT Act misuse. All of the provisions above are subject to routine oversight by both the FISA court and Congress, and no single provision of the PATRIOT Act has ever been found unconstitutional. Congress should not let the sunset provisions expire and should instead seek permanent authorization.
So did the Tea Party movement beat reauthorization? Here’s a list of the 26 Republicans who voted no. In italics — the eight members who were elected in 2010 in the Tea Party wave.
Justin Amash
Roscoe Bartlett
Rob Bishop
Paul Broun
John Campbell
John Duncan
Mike Fitzpatrick* Chris Gibson Tom Graves
Dean Heller Randy Hultgren
Tim Johnson
Walter Jones
Jack Kingston Raul Labrador
Connie Mack
Kenny Marchant
Tom McClintock
Ron Paul
Denny Rehberg
Phil Roe
Dana Rohrabacher Bobby Schilling
David Schweikert
Rob Woodall
Don Young
Many of the big Tea Party names, like Michele Bachmann, Kristi Noem, and Allen West, voted to pass the authorization. I break this out because there’ll be a temptation to say “the Tea Party and its isolationist elements beat the reauthorization,” and that’s not quite it.
But what happened last night highlights the potential to subvert the two-party stranglehold on these issues — through a left-right alliance that opposes the Washington insiders who rule both parties. So confident was the House GOP leadership in commanding bipartisan support that they put the Patriot Act extension up for a vote using a fast-track procedure that prohibits debate and amendments and, in return, requires 2/3 approval. But 26 of the most conservative Republicans — including several of the newly elected “Tea Party” members — joined the majority of Democratic House members in voting against the extension, and it thus fell 7 votes short. These conservative members opposed extension on the ground that more time was needed to understand whether added safeguards and oversight are needed.
The significance of this event shouldn’t be overstated. The proposed Patriot Act extension still commanded support from a significant majority of the House (277-148), and will easily pass once the GOP leadership brings up the bill for a vote again in a few weeks using the standard procedure that requires only majority approval. The vast majority of GOP members, including the leading Tea Party representatives, voted for it. The Senate will easily pass it. And the scope of the disagreement even among the Democrats opposing it is very narrow; even most of the “no” votes favor extending these provisions, albeit with the types of tepid safeguards proposed by Leahy. So in one sense, what happened last night — as is true for most political “victories” — was purely symbolic. The White House will get what it wants.
But while it shouldn’t be overstated, there is a real significance here that also shouldn’t be overlooked. Rachel Maddow last night pointed out that there is a split on the Right — at least a rhetorical one — between what she called “authoritarian conservatives” and “libertarian conservatives.” At some point, the dogmatic emphasis on limited state power, not trusting the Federal Government, and individual liberties — all staples of right-wing political propaganda, especially Tea Party sloganeering — has to conflict with things like oversight-free federal domestic surveillance, limitless government detention powers, and impenetrable secrecy (to say nothing of exploiting state power to advance culture war aims). Not even our political culture can sustain contradictions as egregious as (a) reading reverently from the Constitution and venerating limits on federal power, and then (b) voting to vest the Federal Government with extraordinary powers of oversight-free surveillance aimed at the American people.
Sadly, the revolt probably won’t last, as there are more than the 218 votes needed to pass reauthorization under normal procedures. What’s uncertain is whether the reauthorization will contain mild oversight provisions, and when the provisions will actually sunset. As Cato’s Julian Sanchez notes, there are two Democratic Senate versions that reauthorize these provisions for three years, but the Republican House version sunsets them until December 2011, while the Republican Senate proposal makes them permanent. Democratic Vermont Sen. Patrick Leahy’s version of the bill would reign in Section 215 orders and provide some key oversight over the use of the widely abused National Security Letters, but those modest reforms were too much for Sen. Dianne Feinstein (D-Calif.), so she introduced an alternate bill without them.
The Republican House version places reauthorization right in the middle of presidential primary season, while the Democratic versions kick the can down the road three years. That means that we might be looking forward to the Republican candidates’ positions on the Patriot Act becoming an issue, which may lead to some irresponsible grandstanding about the necessity of passing the Patriot Act without any meaningful oversight. Remember “double Guantanamo?”
Jane Hamsher is with David House who is trying to visit Pvt. Bradley Manning at Quantico today while carrying a petition with 42,000 signatures requesting humane treatment for Manning. The military isn’t making it easy at all and detained Jane and David for two hours. We’re publishing her tweets as well as David House’s tweets here as a post in case you haven’t been able to follow them on Twitter (@JaneHamsher and @DavidMHouse
UPDATE: At 2:50pm the military released Jane and David, and told David he could go off base and come back on to visit Bradley. But visiting hours end at 3pm, so Bradley won’t get a visit. We’ll have more soon.
I just wanted to say a quick thank-you to everyone today for your support when David House and I were being detained at Quantico.
I don’t think any of this had anything to do with me, or frankly the 42,000 petition signatures. The only thing I did was provide housing and transportation to David House, because he’s just out of college and Glenn Greenwald told him he could stay with me when he comes to visit Manning.
Everyone but David has stopped coming to see Bradley, and it takes a lot of courage to do what David is doing. It’s a very intimidating situation. So I try to support him by giving him a place to stay and driving him to the base when he comes to town. That’s really my only involvement.
There is no doubt in my mind that the primary objective of everything that happened today was to keep Bradley Manning from having the company of his only remaining visitor. The MPs told us they were ordered to do this, the brass showed up to make sure that they did, and they held us until 2:50 by repeatedly asking for information they already had whenever we asked to leave.
Visiting hours at the brig end at 3pm, and don’t begin again until the next weekend. It’s a half hour walk from the front gate to the brig, and although they have allowed David to walk before, they wouldn’t let him do it this time. They said he’d have to catch a cab and come back on the base, but they wouldn’t release him to do that until 2:50.
This was all about detaining David, not me. I would not be surprised to learn they were also punishing him for speaking out about Manning’s conditions. The State Department, the FBI and just about every three-letter government agency has been investigating David and the other Boston hackers since they began organizing support for Bradley Manning last summer, with one witch hunt after another attempting to implicate them in one of Adrian Lamo’s fabulist tales of a physical disk hand-off from Manning to Wikileaks. The New York Times keeps printing that one, over and over again, with the Justice Department whispering in their ear and nothing but the word of the inconsistent Lamo for evidence.
David has been detained at the airport, his computer seized and held for months with no explanation. The McCarthy-esque actions of the security agencies has terrified all of these idealistic young people. It is exceptionally admirable that David and others persist in supporting Bradley Manning despite it all.
The net effect of the MP’s actions today was to escalate the climate of threats and intimidation around David, a 23 year-old who just graduated from college, and cut Manning off from any personal contact with the one person who is still showing up to visit him after the government consciously scared everyone else off.
I am very happy that I went, and could be there to support David, because one of the first things the MPs said to us when we arrived — long before they asked for driver’s license, social security numbers, registration, phone numbers, quizzed us about the addresses on our licenses, etc, etc, was that they had orders to do all of this. Which means they were planning to detain us long before we got there. They were going to use any excuse to keep David from visiting Manning, and try to intimidate him from coming back.
A spokesman for the base told the AP that the two were never detained. He said Hamsher’s car was towed after she failed to show proof of insurance, and after MPs determined her car’s license plates were expired.
Manning, who is 23, has been charged with eight crimes related to illegally leaking classified information. Manning is accused of leaking 250,000 diplomatic cables, tens of thousands of military dispatches from the war in Afghanistan and a video that shows U.S. forces opening fire on civilians in Iraq, including two Reuters journalists.
Here’s a free tip for those who are obviously not terribly familiar with the military. You don’t give the military a courtesy call to tell them you are coming. You ask their permission. It’s a military base, not a theme park. And when you tell them in advance that you’re coming to their turf to pull off a media stunt intended to make them look bad and challenge their authority, they’re going to mess with you. Further, even if one of you is on the approved visitor list, (Hamsher is not) when you arrive at a United States Military facility, you are there as their guest. They may choose to suffer your presence, but from the moment you pass through those gates you’re playing by their rules.
Nobody knows why Marines are holding Bradley Manning who is in the Army anyway. Manning attorney unable to get an answer.
If there’s any truth to that, Manning needs to fire his attorney. The Marines handle security duty at numerous military facilities around the world, including the brigs on larger Navy ships. Quantico’s brig, which is staffed by both Marine and Navy personnel, is famous as a secure destination for suspects and convicts in transition, particularly in high profile cases. It has housed a variety of notorious figures ranging from wannabe presidential assassin John Hinkley to convicted traitor and spy Clayton J. Lonetree. There is absolutely nothing unusual about a suspect like Manning winding up there.
In the end, this stunt was just the next phase in Hamsher’s relentless campaign to lionize both Bradley Manning and Julian Assange as some sort of heroes. It’s an effort which has been regularly abetted by Glenn Greenwald, who jumped into the brewing Twitter storm almost immediately. At one point I asked him if he thought Manning might actually be guilty of releasing all those documents and if that made him some sort of hero in Glenn’s eyes. His response was refreshingly honest.
I have no idea – we wait until what’s called a “verdict” before imposing punishment on people. And yeah, I think it’s heroic.
I’m sure we’re all anxious to find out where this story goes next. Will more visitors take on the U.S. Marines? Will Private Manning have his cable TV access reduced to even more barbaric levels less than six hours per day? Will Jane get her car back and find her insurance card? Tune in next time on, As the World of Manning Turns.
The claim is that Hamsher has only electronic rather than printed proof of car insurance — the same proof she’s had every other time she brought House there, though without a petition — and they have thus impounded her car. They also, though, are refusing — without any explanation — to let House visit Manning despite his being on the approved visitor list. So much for Manning’s once-a-week reprieve from solitary confinement.
The U.S. Justice Department has served Twitter with a subpoena seeking information on an Icelandic lawmaker who has worked with WikiLeaks and its founder Julian Assange, the lawmaker told Threat Level on Friday.
“I got the letter from Twitter a couple of hours ago, saying I got 10 days to stop it,” wrote Birgitta Jonsdottir, a member of Iceland’s parliament, in an e-mail. “Looking for legal ways to do it. Will be talking to lawyers from EFF tonight.”
EFF refers to the Electronic Frontier Foundation, a non-profit civil liberties group in the United States.
On her Twitter feed, Jonsdottir said the government is seeking an archive of tweets she sent out since Nov. 1, 2009 as well as “personal information” for her account. (See update below)
Josdottir told Threat Level that the request was filed under seal by the Justice Department on December 14 in U.S. District Court in Alexandria, Virginia. This is the same jurisdiction where, according to previous press reports, a federal grand jury is investigating possible charges against Assange, with whom Jonsdottir has worked closely.
It’s worth recalling — and I hope journalists writing about this story remind themselves — that all of this extraordinary probing and “criminal” investigating is stemming from WikiLeaks’ doing nothing more than publishing classified information showing what the U.S. Government is doing: something investigative journalists, by definition, do all the time.
And the key question now is this: did other Internet and social network companies (Google, Facebook, etc.) receive similar Orders and then quietly comply? It’s difficult to imagine why the DOJ would want information only from Twitter; if anything, given the limited information it has about users, Twitter would seem one of the least fruitful avenues to pursue. But if other companies did receive and quietly comply with these orders, it will be a long time before we know, if we ever do, given the prohibition in these orders on disclosing even its existence to anyone.
If you’re wondering whether Twitter will fold or fight (with lawyers to back them up) after receiving the subpoena, the following clause from Twitter’s “spy guide” policy will tell you:
“In accordance with our Privacy Policy and Terms of Service, non-public information about Twitter users is not released unless we have received a subpoena, court order or other legal process document.” Such requests would only be valid if sent by law enforcement.”
So yes, they would most likely fold faster than Superman on laundry day. More on this as it develops.
To Twitter’s credit, the company didn’t just open up its database, find the information the feds were seeking (such as the IP and e-mail addresses used by the targets) and quietly continue on with building new features. Instead the company successfully challenged the gag order in court, and then told the targets their data was being requested, giving them time to try and quash the order themselves.
Twitter and other companies, notably Google, have a policy of notifying a user before responding to a subpoena, or a similar request for records. That gives the user a fair chance to go to court and try and quash the subpoena. That’s a great policy. But it has one fatal flaw. If the records request comes with a gag order, the company can’t notify anyone. And it’s quite routine for law enforcement to staple a gag order to a records request.
That’s what makes Twitter’s move so important. It briefly carried the torch for its users during that crucial period when, because of the gag order, its users couldn’t carry it themselves. The company’s action in asking for the gag order to be overturned sets a new precedent that we can only hope that other companies begin to follow.
The decision would be laudable in almost any situation, and may even be unprecendented by a massive tech firm. The only other gag orders I can think of that were challenged in court were those served on the Internet Archive, on a small library and on Nicholas Merrill, the president of the small New York City ISP Calyx Internet Access, who spent years resisting a National Security Letter order seeking information about one of his clients.
Even more remarkable, Twitter’s move comes as a litany of companies, including PayPal, Mastercard, VISA and Bank of America, follow the political winds away from the First Amendment, banning donations to WikiLeaks. And Amazon.com voluntarily threw the site off its hosting platform, even though there’s nothing illegal in publishing classified documents.
By standing up for its users, Twitter showed guts and principles. Much of it is likely attributable to Twitter’s general counsel Alexander Macgillivray. As security and privacy blogger Christopher Soghoian notes, Macgillivray was one of the first law students at Harvards’ Berkman internet law center and at in his previous job at Google “played a major role in getting the company to contribute takedown requests to chillingeffects.org.”
Twitter’s general counsel comes out of Harvard’s prestigious Berkman Center for Internet and Society, the cyber law powerhouse that has churned out some of the leading Internet legal thinkers. The center was founded a little over a decade ago by none other than Charles Nesson, the famous defender of Pentagon Papers leaker Daniel Ellsberg. While at Harvard, Macgillivray helped teach a course on the law of cyberspace, along with Wendy Seltzer, a fellow at Princeton’s Center for Information Technology Policy. Today Seltzer leads the Chilling Effects clearinghouse, a collaboration between several law schools and the Electronic Frontier Foundation, which tracks legal challenges to lawful online activity.
After Harvard, Macgillivray worked as a litigator for Silicon Valley super-firm Wilson Sonsini Goodrich & Rosati before moving to Google, where he first spearheaded legal issues for products like Search and Gmail. He soon found himself enmeshed in the fractious Google Books lawsuit. Observers credit Macgillivray’s agile mind and creative thinking with architecting with the Google Books Settlement–a solution that both enabled Google to lawfully scan the contents of university libraries and to create a mechanism for authors and publishers to get their out-of-print books back into circulation.
Twitter wooed Macgillivray away from Google in the summer of 2009, and he now heads a 25-person legal team. Throughout his career, he has remained an avid student of Internet and intellectual property law, and calls himself a tinkerer of sorts–his personal website is called “bricoleur,” a French term he says refers to one who “[tries] things out until they figure out how to do something.”
Macgillivray also curates a Twitter list of the primary thinkers tangling with cyber issues, and he has occasionally returned to Berkman to guest lecture or speak on topics of the day. Coincidentally, a week before the DOJ subpoena, Macgillivray was tweeting about a government analysis looking at which criminal statutes might apply to the WikiLeaks-style publication of leaked classified documents.
Twitter has declined to comment on the original subpoena and the company’s fight to get it unsealed. What we do know is that the original order was faxed to Twitter on December 14. On January 5, the same magistrate who signed the first order, signed a new one, ordering the first to be unsealed. And on January 7, Twitter sent notifications to at least several of the holders of the accounts listed on the subpoena, telling them the company would respond to the order in 10 days, unless “we receive notice from you that a motion to quash the legal process has been filed or that this matter has been otherwise resolved.”
It’s reasonable to assume that Macgillivray is the person who either led or played a significant role in the thinking that resulted in the decision to challenge the secrecy aspect of the order. If so, it’s a smart move.
The journalist cannot adequately promise anonymity on social sites like Twitter or others, but that won’t stop whistle-blowers from contacting journalists on those sites. Whistle-blowers will still reach out to journalists on those platforms because that’s where they are often most accessible. Therefore, it ultimately starts with protection from the platform.
Journalists may be able to offer some protection in knowing that the platform will not disclose source information. But this would take a serious restructuring of the current culture of companies that do not stand up for their users. Twitter’s move to notify its users is a step in the right direction.
But notification is not enough to provide protection to journalists whose information is being subpoenaed by a federal court. In the U.S., 36 states and Washington, D.C. have journalist shield laws — legislation that provides reporters a privilege to refuse to disclose any information or sources obtained during their reporting. The rest of the states either provide some protection or none at all. But because there is no federal statutory reporter’s shield law, Jane Kirtley, who teaches media ethics and law at the University of Minnesota, says that in all likelihood, there would be no protection for a journalist being subpoenaed on a federal level.
Kirtley notes there are federal attorney general guidelines, which discourage the use of subpoenas against the press, but nothing to outright prohibit them as long as the attorney general approves it.
The case with Twitter and other tech companies is that these are not considered to be subpoenas for journalists’ records, so even if there is a privilege, it is unlikely to apply to these records, Kirtley said. This is a loophole that gives journalists little protection or right to protect themselves in their reporting while using such sites.
If a journalist refuses to disclose information to a government entity requesting it in an investigation, the court can simply go to the platform of communication to get the records. With many social media sites playing a vital role in news distribution and watchdog journalism, this requires a stand from those sites against disclosing such information in a broken system that once recognized the value of protecting journalistic integrity.
But ultimately, the privilege of shield laws should also extend to the social platforms hosting the information that is shared between whistle-blowers and journalists. And until there is a federal shield law for reporters, protection for such newsgathering will be nonexistent. This is the only way to fix the broken system. Platforms can only protect their users to a certain extent. It then becomes a legislative issue around the protection of journalists and the Fourth Estate.
Let’s rewind to November 2007. Yahoo had just complied with the Chinese government’s request for the IP information and e-mail records of Wang Xiaoning and Shi Tao, two Chinese dissidents who China accused of “illegally providing state secrets to foreign entities.” Michael Callahan, the Yahoo’s executive VP and general counsel, was in Congress getting reamed by the late Tom Lantos (D-CA), Chairman of the House Foreign Affairs Committee, for the company’s gross moral failure: “Yahoo claims that this is just one big misunderstanding. Let me be clear—this was no misunderstanding. This was inexcusably negligent behavior at best, and deliberately deceptive behavior at worst.”
Yahoo’s response: “Like other global organizations we must abide by the laws, regulations and norms of each country in which we operate.”
“Why do you insist on using the phrase, ‘lawful orders?’” Lantos challenged. “These are the demands of a police state.”
Lantos even brought Shi Tao’s mother to the hearing, seated her in the front of the room, and told Yahoo CEO Jerry Yang: “I would urge you to beg the forgiveness of the mother whose son is languishing behind bars thanks to Yahoo’s actions.”
On June 6, Kevin Poulsen and Kim Zetter of Wiredreported that a 22-year-old U.S. Army Private in Iraq, Bradley Manning, had been detained after he “boasted” in an Internet chat — with convicted computer hacker Adrian Lamo — of leaking to WikiLeaks the now famous Apache Helicopter attack video, a yet-to-be-published video of a civilian-killing air attack in Afghanistan, and “hundreds of thousands of classified State Department records.” Lamo, who holds himself out as a “journalist” and told Manning he was one, acted instead as government informant, notifying federal authorities of what Manning allegedly told him, and then proceeded to question Manning for days as he met with federal agents, leading to Manning’s detention.
On June 10, former New York Times reporter Philip Shenon, writing in The Daily Beast, gave voice to anonymous “American officials” to announce that “Pentagon investigators” were trying “to determine the whereabouts of the Australian-born founder of the secretive website Wikileaks [Julian Assange] for fear that he may be about to publish a huge cache of classified State Department cables that, if made public, could do serious damage to national security.” Some news outlets used that report to declare that there was a “Pentagon manhunt” underway for Assange — as though he’s some sort of dangerous fugitive.
From the start, this whole story was quite strange for numerous reasons. In an attempt to obtain greater clarity about what really happened here, I’ve spent the last week reviewing everything I could related to this case and speaking with several of the key participants (including Lamo, with whom I had a one-hour interview last night that can be heard on the recorder below, and Poulsen, with whom I had a lengthy email exchange, which is published in full here). A definitive understanding of what really happened is virtually impossible to acquire, largely because almost everything that is known comes from a single, extremely untrustworthy source: Lamo himself. Compounding that is the fact that most of what came from Lamo has been filtered through a single journalist — Poulsen — who has a long and strange history with Lamo, who continues to possess but not disclose key evidence, and who has been only marginally transparent about what actually happened here (I say that as someone who admires Poulsen’s work as Editor of Wired‘s Threat Level blog).
[…]
Actually, over the years, Poulsen has served more or less as Lamo’s personal media voice. Back in 2000, Poulsen would quote Lamo as an expert source on hacking. That same year, Poulsen — armed with exclusive, inside information from Lamo — began writing about Lamo’s various hacking adventures. After Lamo’s conviction, Poulsen wrote about his post-detention battles with law enforcement and a leaked documentary featuring Lamo. As detailed below, Lamo is notorious in the world of hacking for being a low-level, inconsequential hacker with an insatiable need for self-promotion and media attention, and for the past decade, it has been Poulsen who satisfies that need.
On May 20 — a month ago — Poulsen, out of nowhere, despite Lamo’s not having been in the news for years, wrote a long, detailed Wired article describing serious mental health problems Lamo was experiencing. The story Poulsen wrote goes as follows: after Lamo’s backpack containing pharmaceutical products was stolen sometime in April (Lamo claims they were prescribed anti-depressants), Lamo called the police, who concluded that he was experiencing such acute psychiatric distress that they had him involuntarily committed to a mental hospital for three days. That 72-hour “involuntary psychiatric hold” was then extended by a court for six more days, after which he was released to his parents’ home. Lamo claimed he was diagnosed with Asperger’s Syndrome, a somewhat fashionable autism diagnosis which many stars in the computer world have also claimed. In that article, Poulsen also summarized Lamo’s extensive hacking history. Lamo told me that, while he was in the mental hospital, he called Poulsen to tell him what happened, and then told Poulsen he could write about it for a Wired article. So starved was Lamo for some media attention that he was willing to encourage Poulsen to write about his claimed psychiatric problems if it meant an article in Wired that mentioned his name.
It was just over two weeks after writing about Lamo’s Asperger’s, depression and hacking history that Poulsen, along with Kim Zetter, reported that PFC Manning had been detained, after, they said, he had “contacted former hacker Adrian Lamo late last month over instant messenger and e-mail.” Lamo told me that Manning first emailed him on May 20 and, according to highly edited chat logs released by Wired, had his first online chat with Manning on May 21; in other words, Manning first contacted Lamo the very day that Poulsen’s Wired article on Lamo’s involuntary commitment appeared (the Wired article is time-stamped 5:46 p.m. on May 20).
Although none of the Wired articles ever mention this, the first Lamo-Manning communications were not actually via chat. Instead, Lamo told me that Manning first sent him a series of encrypted emails which Lamo was unable to decrypt because Manning “encrypted it to an outdated PGP key of mine” [PGP is an encryption program]. After receiving this first set of emails, Lamo says he replied — despite not knowing who these emails were from or what they were about — by inviting the emailer to chat with him on AOL IM, and provided his screen name to do so. Lamo says that Manning thereafter sent him additional emails encrypted to his current PGP key, but that Lamo never bothered to decrypt them. Instead, Lamo claims he turned over all those Manning emails to the FBI without ever reading a single one of them. Thus, the actual initial communications between Manning and Lamo — what preceded and led to their chat — are completely unknown. Lamo refuses to release the emails or chats other than the small chat snippets published by Wired.
Using the chat logs between Lamo and Manning — which Lamo provided to Poulsen — the Wired writers speculated that the Army Private trusted Lamo because he “sensed a kindred spirit in the ex-hacker.” Poulsen and Zetter write that Manning confessed to being the leaker of the Apache attack video “very quickly in the exchange,” and then proceeded to boast that, in addition, “he leaked a quarter-million classified embassy cables” to WikiLeaks. Very shortly after the first chat, Lamo notified federal agents of what Manning told him, proceeded to speak to Manning for the next several days while consulting with federal agents, and then learned that Manning was detained in Iraq.
Here’s how it worked in the Manning case: Manning first contacted Lamo by IM on May 21st. On May 24th, Lamo called Poulsen to let him know about the potential story, but witheld details. Lamo began working with the feds to nab Manning. On May 26th, Manning was arrested. The day after Lamo learned of Manning’s arrest, he told the whole story to Poulsen, who drove miles to pick up a zip drive with the chat logs, according to the CJR. Poulsen wrote the post and published June 6th.
We see here how Lamo functions essentially as an informal stringer for Poulsen. Lamo told the BBC that he had even told Manning he was a journalist. That Lamo then turned on his source is a pretty blatant violation of journalistic ethics, but never mind; Poulsen gets his story and Lamo gets his name in the papers.
In typical hyperbolic fashion, Wikileaks has been Tweeting allegations that this means Wired was in collusion with Lamo and, thus, the US government. Really, what’s going on doesn’t differ much from any source-journalist relationship.
But Wired’s role is indeed colored by Poulsen’s strong relationship with Lamo—and the fact that Lamo turned Manning into the authorities. When hackers come to the media with, say, evidence of a massive iPad security flaw, they usually demand some sort of anonymity. Manning didn’t have this option, since, technically he wasn’t speaking with a journalist. But the fact that Lamo presumably intended from the beginning to dish to Poulsen complicates things.
The exact role of Wired in this—and the extent to which Lamo misled Manning to think he was a journalist—could presumably be answered by looking at the full chat logs Lamo gave Poulsen. But Poulsen told Greenwald that Wired didn’t release the full transcript because it detailed “personal matters” or sensitive government information. Bullshit. Poulsen and Lamo have been working as an informal hacker-journalist unit for years. It’s time to get some Wikileaks-style transparency on how it all works.
Poulsen’s concealment of the chat logs is actively blinding journalists and others who have been attempting to learn what Manning did and did not do. By allowing the world to see only the fraction of the Manning-Lamo chats that he chose to release, Poulsen has created a situation in which his long-time “source,” Adrian Lamo, is the only source of information for what Manning supposedly said beyond those published exceprts. Journalists thus routinely print Lamo’s assertions about Manning’s statements even though — as a result of Poulsen’s concealment — they are unable to verify whether Lamo is telling the truth. Due to Poulsen, Lamo is now the one driving many of the media stories about Manning and WikiLeaks even though Lamo (a) is a convicted felon, (b) was (as Poulsen strangely reported at the time) involuntarily hospitalized for severe psychiatric distress a mere three weeks before his chats with Manning, and (c) cannot keep his story straight about anything from one minute to the next.
To see how odious Poulsen’s concealment of this evidence is, consider this December 15 New York Times article by Charlie Savage, which reports that the DOJ is trying to prosecute WikiLeaks based on the theory that Julian Assange “encouraged or even helped” Manning extract the classified information. Savage extensively quotes Lamo claiming that Manning told him all sorts of things about WikiLeaks and Assange that are not found in the portions of the chat logs published by Wired:
Among materials prosecutors are studying is an online chat log in which Private Manning is said to claim that he had been directly communicating with Mr. Assange using an encrypted Internet conferencing service as the soldier was downloading government files. Private Manning is also said to have claimed that Mr. Assange gave him access to a dedicated server for uploading some of them to WikiLeaks.
Adrian Lamo, an ex-hacker in whom Private Manning confided and who eventually turned him in, said Private Manning detailed those interactions in instant-message conversations with him.
He said the special server’s purpose was to allow Private Manning’s submissions to “be bumped to the top of the queue for review.” By Mr. Lamo’s account, Private Manning bragged about this “as evidence of his status as the high-profile source for WikiLeaks.”
Wired magazine has published excerpts from logs of online chats between Mr. Lamo and Private Manning. But the sections in which Private Manning is said to detail contacts with Mr. Assange are not among them. Mr. Lamo described them from memory in an interview with the Times, but he said he could not provide the full chat transcript because the F.B.I. had taken his hard drive, on which it was saved. . . .
It has been known that investigators were looking for evidence that one or more people in Boston served as an intermediary between Private Manning and WikiLeaks, although there is no public sign that they have found any evidence supporting that theory. . . .
“At some point, [Manning] became satisfied that he was actually talking to Assange and not some unknown third party posing as Assange, and based on that he began sending in smaller amounts of data from his computer,” Mr. Lamo said. “Because of the nature of his Internet connection, he wasn’t able to send large data files easily. He was using a satellite connection, so he was limited until he did an actual physical drop-off when he was back in the United States in January of this year.”
Lamo’s claim — that Manning told him that he physically dropped off a disk with classified information to WikiLeaks’ “intermediaries” in Boston — is nowhere to be found in the chat logs released by Poulsen. And while there are a couple of vague references in the chats to Manning’s interactions with Assange, there is also little in the released portions about Assange using an “encrypted Internet conferencing service” to talk to Manning or specially creating a “dedicated server” for Manning to use. Yet here is Lamo, on the front page of The New York Times, making these incredibly inflammatory accusations about what Manning supposedly told him — accusations that could implicate both WikiLeaks and numerous individuals in the Boston area, including MIT students who (due at least in part to Lamo’s prior accusations) have been the subject of WikiLeaks-related probes by the FBI.
Whether Manning actually said these things to Lamo could be verified in one minute by “journalist” Kevin Poulsen. He could either say: (1) yes, the chats contain such statements by Manning, and here are the portions where he said these things, or (2) no, the chats contain no such statements by Manning, which means Lamo is either lying or suffers from a very impaired recollection about what Manning said. Poulsen could also provide Lamo — who claims he is no longer in possession of them — with a copy of the chat logs (which Lamo gave him) so that journalists quoting Lamo about Manning’s statements could see the actual evidence rather than relying on Lamo’s claims. Any true “journalist” — or any person minimally interested in revealing the truth — would do exactly that in response to Lamo’s claims as published by TheNew York Times.
But manifestly, those descriptions do not apply to Kevin Poulsen. It’s been almost two weeks since Savage wrote his story in which he prominently pointed out that Wired has the evidence — but has not released it — which would confirm whether Lamo is telling the truth about these vital matters, and Poulsen has said nothing. Moreover, I sent Poulsen an e-mail two days ago — here — expressly asking whether or not the chat logs contain what Lamo says they contain about WikiLeaks and Boston-area “intermediaries,” and he has ignored the inquiries. This is not the behavior of a journalist seeking to inform the public, but of someone eager, for whatever reasons, to hide the truth.
On Monday, Salon.com columnist Glenn Greenwald unleashed a stunning attack on this publication, and me in particular, over our groundbreaking coverage of WikiLeaks and the ongoing prosecution of the man suspected of being the organization’s most important source. Greenwald’s piece is a breathtaking mix of sophistry, hypocrisy and journalistic laziness.
We took the high ground and ignored Greenwald and Salon the first time they pulled this nonsense. Now it’s time to set the record straight.
If you’re just tuning in, Wired.com was the first to report, last June, on the then-secret arrest of Pfc. Bradley Manning. I learned of the arrest from Adrian Lamo, a well-known former hacker on whom I reported extensively from 2000 to 2002. It was Lamo who turned Manning in to the Army and the FBI, after Manning — isolated and despondent — contacted him online and began confiding the most intimate details of his life, including, but by no means limited to, his relationship with WikiLeaks, and the vast databases he claimed to have provided them.
Co-writer Kim Zetter and I followed up the story four days later with a piece examining Manning’s motives. The Washington Post had just run a fine story about Manning’s state-of-mind: At the time of his discussions with Lamo, he’d been through a bad breakup and had other personal conflicts. But I felt — and still do feel — that it’s a mistake to automatically ascribe Manning’s actions to his feeling depressed. (For one thing, his breakup occurred after the leaking.) There’s an implicit political judgment in that conclusion: that leaking is an aberrant act, a symptom of a psychological disorder. Manning expressed clear and rational reasons for doing what he did, whether one agrees with those reasons or not.
So we went into the logs of the chats Manning held with Lamo — which Lamo had provided Wired and The Washington Post — and pieced together a picture of why Manning took his historic actions, based on his own words (“Suspected Wikileaks Source Described Crisis of Conscience Leading to Leaks“). As a sidebar to the article, we published excerpts from those chat logs.
We’ve had several more scoops since then, reporting new information on Manning’s history in the Army, and revealing the internal conflict his alleged disclosures triggered within WikiLeaks.
But those first stories in June either excerpted, quoted or reported on everything of consequence Manning had to say about his leaking. We’ve led the coverage on this story, and we would gain nothing by letting another scoop simmer unreported on our hard drives.
The debate, if it can be described as that, centers on the remainder of Manning’s conversations with Lamo. Greenwald argues that Wired.com has a journalistic obligation to publish the entirety of Manning’s communications. As with other things that Greenwald writes, the truth is the opposite. (See the statement above by Wired’s editor-in-chief.)
Greenwald’s incomplete understanding of basic journalistic standards was first displayed in his earlier piece on this subject, last June, titled “The Strange and Consequential Case of Bradley Manning, Adrian Lamo and WikiLeaks.” This is where he first claimed that Lamo and I have “long and strange history together.”
That “history” began in 2000, when, while reporting for the computer security news site SecurityFocus.com, I contacted Lamo to use him as an expert on security issues at AOL. I sought him out because he’d been quoted in a similar capacity in a Salon.com article the year before.
Later, Lamo began sharing with me the details of some of his hacking. Lamo was nearly unique among hackers of that period, in that he had no evident fear of discussing his unlawful access, regardless of the inevitable legal consequences. He cracked everyone from Microsoft to Yahoo, and from MCI to Excite@Home. And he freely discussed how he did it, and sometimes helped the victim companies close their security holes afterward.
This came at a time, prior to the passage of California’s SB1386, when companies had no legal obligation to reveal security breaches, and hackers, facing tough criminal sanctions, had a strong disincentive to reveal it themselves. Lamo’s transparency provided an invaluable window on the poor state of computer security.
Using little more than a web browser, he was able to gain sensitive information on critical infrastructure, and private data like Social Security numbers. He changed a news story on Yahoo — at the time the most-trafficked news source on the web — undetected. In the intrusion that finally resulted in his arrest, he cracked The New York Times intranet and added himself to the paper’s internal database of op-ed contributors.
Some people regarded him as a hacker hero — Kevin Spacey narrated a documentary about him. Others argued he was a villain. At his sentencing, Lamo’s prosecutors argued he was responsible for “a great deal of psychological injury” to his victims.
To Greenwald, all this makes Lamo “a low-level, inconsequential hacker.” This conclusion is critical to his thesis that Lamo and I have something more than a source-journalist relationship. Greenwald’s theory is that Lamo’s hacks were not newsworthy. But, this line of thought goes, in exchange for the chance to break the non-news of his intrusions, I reported them — getting Lamo attention among the readers of SecurityFocus.com.
What he fails to report is that those same breaches were also covered by the Associated Press, Reuters, Wired magazine (well before my tenure at Wired.com), cable news networks, every tech news outlet and several national newspapers, and that Lamo spoke freely to all of them.
Last night, Wired posted a two-part response to my criticisms of its conduct in reporting on the arrest of PFC Bradley Manning and the key role played in that arrest by Adrian Lamo. I wrote about this topic twice — first back in June and then again on Monday. The first part of Wired‘s response was from Wired.com Editor-in-Chief Evan Hansen, and the second is from its Senior Editor Kevin Poulsen. Both predictably hurl all sorts of invective at me as a means of distracting attention from the central issue, the only issue that matters: their refusal to release or even comment on what is the central evidence in what is easily one of the most consequential political stories of this year, at least.
That’s how these disputes often work by design: the party whose conduct is in question (here, Wired) attacks the critic in order to create the impression that it’s all just some sort of screeching personality feud devoid of substance. That, in turn, causes some bystanders to cheer for whichever side they already like and boo the side they already dislike, as though it’s some sort of entertaining wrestling match, while everyone else dismisses it all as some sort of trivial Internet catfight not worth sorting out. That, ironically, is what WikiLeaks critics (and The New York Times‘ John Burns) did with the release of the Iraq War documents showing all sorts of atrocities in which the U.S. was complicit: they tried to put the focus on the personality quirks of Julian Assange to distract attention away from the horrifying substance of those disclosures. That, manifestly, is the same tactic Wired is using here: trying to put the focus on me to obscure their own ongoing conduct in concealing the key evidence shining light on these events.
In a separate post, I fully address every accusation Hansen and Poulsen make about me as well as the alleged inaccuracies in what I wrote. But I’m going to do everything possible here to ensure that the focus remains on what matters: the way in which Wired, with no justification, continues to conceal this evidence and, worse, refuses even to comment on its content, thus blinding journalists and others trying to find out what really happened here, while enabling gross distortions of the truth by Poulsen’s long-time confidant and source, the government informant Adrian Lamo.
The bottom line from Hansen and Poulsen is that they still refuse to release any further chat excerpts or, more inexcusably, to comment at all on — to verify or deny — Lamo’s public statements about what Manning said to him that do not appear in those excerpts. They thus continue to conceal from the public 75% of the Manning-Lamo chats. They refuse to say whether Lamo’s numerous serious accusations about what Manning told him are actually found anywhere in the chat logs. Nor will they provide the evidence to resolve the glaring inconsistencies in Lamo’s many public tales about the critical issues: how he came to speak to Manning, what Lamo did to induce these disclosures, and what Manning said about his relationship to WikiLeaks and his own actions. Every insult Wired spouts about me could be 100% true and none of it changes the core fact: Wired is hiding the key evidence about what took place here, thus allowing Lamo to spout all sorts of serious claims without any check and thus drive much of the reporting about WikiLeaks.
To defend this concealment, Hansen claims that they “have already published substantial excerpts from the logs.” But the parts they are concealing are far more substantial: 75% by their own account, and critically, the person who played a key role in hand-picking which parts to publish and which parts to conceal is the person whom BBC News accurately describes as “Mr Lamo’s long-term associate Kevin Poulsen.” Poulsen claims he “either excerpted, quoted or reported on everything of consequence Manning had to say about his leaking,” but that begs the key question: is everything — or anything — that Lamo has been claiming about Manning’s statements found in the chat logs or not? Why won’t Wired answer that question? Below, I set forth what Lamo has claimed that is not in the chat logs and why it is so vital to know if it’s there.
Hansen’s defense principally relies on a total strawman: that I’m calling for the full, unedited release of the chat logs. Hansen insists that Wired cannot do this because of privacy concerns for Manning. He titles his response “The Case for Privacy,” and claims “that the logs include sensitive personal information with no bearing on Wikileaks.”
But neither I nor anyone else I’ve read has called on Wired to indiscriminately dump the chat logs without any redactions or regard for Manning’s privacy. Back in June — once Poulsen’s claims that they were withholding only private information and national security secrets was proven false by TheWashington Post‘s subsequent publication of chat excerpts that fell into neither category — this is what I called on Wired to do:
Wired should either publish all of the chat logs, or be far more diligent about withholding only those parts which truly pertain only to Manning’s private and personal matters and/or which would reveal national security secrets. Or they should have a respected third party review the parts they have concealed to determine if there is any justification for that. At least if one believes Lamo’s claims, there are clearly relevant parts of those chats which Wired continues to conceal.
Then, on Sunday, I noted several important events that transpired since I wrote that June article: most prominently the fact that Wired‘s source, Lamo, had spent six months making all sorts of public claims about what Manning told him that are nowhere in the chat excerpts published by Wired. Moreover, the disclosures by WikiLeaks gut Poulsen’s excuse that Wired‘s concealments are necessary to protect national security secrets (an excuse Hansen did not even raise). As a result of those developments, this is what I wrote on Sunday that Wired should do:
What they ought to do, at the absolute minimum, is post the portions of the chat logs about which Lamo had made public statements or make clear that they do not exist. . . . Poulsen could also provide Lamo — who claims he is no longer in possession of them — with a copy of the chat logs (which Lamo gave him) so that journalists quoting Lamo about Manning’s statements could see the actual evidence rather than relying on Lamo’s claims.
For anyone who wants to defend Wired here, I’d really like to know: what possible excuse is there for their refusal to do this? Even if you trust Poulsen — despite his very close and long relationship to Lamo — to conceal some parts of the chats on privacy grounds, what justification is there for Wired‘s refusal to state that either (a) Lamo’s claims about what Manning told him are supported by the chat logs (and then publish those portions), or (b) Lamo’s claims are not found in the chat logs, thus proving that Lamo is either lying or has an unreliable recollection? While Adrian Lamo runs around spouting all sorts of serious accusations about what Manning supposedly told him that are not found in Wired‘s excerpts — claims which end up in the world’s largest news outlets — and while he issues one contradictory claim after the next about these events, how can anyone claiming to be a journalist not inform the public about whether those stories are true? For Wired defenders: what justifies that obfuscatory behavior, that refusal to say whether Lamo’s claims are true or false based on the chat logs?
I love a good blog fight as much as anyone, but after reading several thousand words of accusations and counter accusations being slung between Salon blogger Glenn Greenwald and Wired‘s Evan Hansen and Kevin Poulsen, I’m left scratching my head trying to figure out what, exactly, this particular dispute is all about.
For those of you who haven’t been paying attention, first of all: congratulations. Second, here’s a quick synopsis: On June 6, Poulsen and his colleague Kim Zetter broke the sensational story that a young Army intelligence officer, Bradley Manning, had been arrested for disclosing classified information to WikiLeaks, including a video showing a U.S. helicopter gunship killing three civilians in Iraq and more than 250,000 State Department cables. Wired‘s main source was Adrian Lamo, a former hacker who says he turned Manning in to U.S. authorities after the latter confessed to the deed in a Web chat. As Lamo explained his motivation: “I wouldn’t have done this if lives weren’t in danger.”
Four days later, Poulsen and Zetter published a new article on Manning, as well as an incomplete transcript of Lamo and Manning’s chats, which had begun on May 21 and continued for a few days. “The excerpts represent about 25 percent of the logs,” they wrote. “Portions of the chats that discuss deeply personal information about Manning or that reveal apparently sensitive military information are not included.”
That same day, the Washington Post published its own article on Manning’s arrest, quoting from the logs, which the paper said it had received from Lamo. Some of the quotes do not appear in Wired‘s excerpts. Wired also continued to follow the story.
On June 18, Greenwald wrote a long blog post raising questions about Poulsen’s scoop and about Lamo. He said he found the story “quite strange,” called Lamo an “extremely untrustworthy source,” and accused Poulsen of being “only marginally transparent about what actually happened here.”
What was curious about Greenwald’s post was that he didn’t challenge any specific facts in Wired‘s reporting; he just pointed to what he saw as inconsistencies in the story, as well as Lamo’s account, and condemned the ex-hacker’s actions as “despicable.” He didn’t suggest outright that Manning had not actually confessed to Lamo. He didn’t try to argue that Manning hadn’t broken the law. He didn’t say the log excerpts were fabricated. He did, however, complain that Lamo had told him about conversations with Manning that were not in the chat-log excerpts published by Wired, and called on the magazine to release them. Poulsen said he wouldn’t be doing so, telling Greenwald: “The remainder is either Manning discussing personal matters that aren’t clearly related to his arrest, or apparently sensitive government information that I’m not throwing up without vetting first.”
Still with me?
Then, on Monday, several weeks after the cables had begun trickling out, Greenwald again returned to the issue. In a torqued-up post titled “The worsening journalistic disgrace at Wired,” he excoriated the magazine and Poulsen for refusing to release the full logs, calling Poulsen’s behavior “odious” and “concealment” of “key evidence.” Greenwald appears to have been motivated to weigh in anew by Firedoglake — a left-leaning website whose members had been obsessively trolling the Web for stories about Lamo and Manning, and even pulled together a handy, color-coded expanded transcript from the logs — as well as by a flawedNew York Timesarticle reporting that the Justice Department was trying to build a conspiracy case against WikiLeaks frontman Julian Assange. Presumably, the logs would be an important part of the prosecution’s argument.
Wired responded to Greenwald Tuesday night with twin posts by Hansen, the magazine’s editor in chief, and Poulsen. Greenwald fired back with two angry posts of his own today (1, 2). Long story short: Wired reiterated its refusal to release the logs (Poulsen: “[T]hose first stories in June either excerpted, quoted or reported on everything of consequence Manning had to say about his leaking”), Greenwald rejected that explanation, and both sides traded some nasty barbs about each other and made competing claims about the nature of Poulsen’s relationship with Lamo.
What still remains a mystery to me is what, exactly, Greenwald thinks is being covered up here. What is he accusing Wired of doing, and why? Does he think that the full transcript of the logs would somehow exonerate Manning, or prove Lamo a liar? And if he catches Lamo telling a journalist something that wasn’t in the logs, what then?
8:20 For a good running twitter debate on Greenwald vs. Wired (see below), check out @felixsalmon and @penenberg. And Jeff Jarvis tweets: “Now I need a journalist (& FDL) to cut through personal, professional invective among @ evanatwired, @ kpoulson, @ ggreenwald to answer Qs.”
More to the point, Wired gets even in a two-part article by EIC Evan Hansen and Senior Editor Kevin Poulsen. The latter writes:
On Monday, Salon.com columnist Glenn Greenwald unleashed a stunning attack on this publication, and me in particular, over our groundbreaking coverage of WikiLeaks and the ongoing prosecution of the man suspected of being the organization’s most important source. Greenwald’s piece is a breathtaking mix of sophistry, hypocrisy and journalistic laziness.
That’s the tip of an iceberg that includes an undisclosed conflict of interest and more than one major factual error. But is it breathtaking? Perhaps the folks at Wired never noticed until now that inaccuracy, sophistry, hypocrisy, free-floating rage and undisclosed conflicts are Greenwald features, not bugs.
Significantly, Hansen and Poulsen include Salon in their critique. Granted, if Salon was serious about maintaining some minimum level of integrity, they wouldn’t have brought Greenwald on board in February 2007, as he had already been exposed as a egomaniacal sock-puppeteer. It is nevertheless a timely reminder of that lack of standards on the part of both Greenwald and Salon.
I’m proud of the citizen journalism here at FDL that was used by Glenn Greenwald to meticulously document many of the inconsistencies in the Wired narrative, and which will no doubt continue to be used as the Lamo-Manning story evolves over time. I hope at the very least it has put an end to outlets like the New York Times using Lamo as a source for front page stories without going back and looking at what Lamo has said (or hasn’t said) in the past, because there is no excuse now.
Here are the chat logs, here are the previous Lamo interviews, and here is a timeline of events. Any journalist writing on the subject can easily make themselves familiar with the history of what has been said and written, and they should be responsible for making sure that anything they produce is contextualized within that.
I’m not sure why Hansen thinks transcribing interviews and logging articles qualifies as “discrediting Lamo.” Lamo’s own words and actions are responsible for any indictment being made in the press, and Wired’s decision to sit on the chat logs makes them an active participant in whatever claims Lamo makes about their contents.
If Hansen doesn’t think the credibility of the key source for Wired’s reporting on this story can hold up when simply compared to his own words, I’d say they’ve got bigger problems than Glenn Greenwald.
What is particularly odd is that this is an online journal that should know better about this sort of thing- the logs will eventually come out. Maybe some of you were right about Wired, that it is basically People magazine for the online set, and I should find better sources in the future. At any rate, all we can do for now is keep the pressure up and refuse to visit Wired or any affiliates until they come clean. Hit em in the statcounter, I guess.
Nine years after the terrorist attacks of 2001, the United States is assembling a vast domestic intelligence apparatus to collect information about Americans, using the FBI, local police, state homeland security offices and military criminal investigators.
The system, by far the largest and most technologically sophisticated in the nation’s history, collects, stores and analyzes information about thousands of U.S. citizens and residents, many of whom have not been accused of any wrongdoing.
The government’s goal is to have every state and local law enforcement agency in the country feed information to Washington to buttress the work of the FBI, which is in charge of terrorism investigations in the United States.
Other democracies – Britain and Israel, to name two – are well acquainted with such domestic security measures. But for the United States, the sum of these new activities represents a new level of governmental scrutiny.
This localized intelligence apparatus is part of a larger Top Secret America created since the attacks. In July, The Washington Post described an alternative geography of the United States, one that has grown so large, unwieldy and secretive that no one knows how much money it costs, how many people it employs or how many programs exist within it.
Today’s story, along with related material on The Post’s Web site, examines how Top Secret America plays out at the local level. It describes a web of 4,058 federal, state and local organizations, each with its own counterterrorism responsibilities and jurisdictions. At least 935 of these organizations have been created since the 2001 attacks or became involved in counterterrorism for the first time after 9/11.
In The Washington Post today, Dana Priest and William Arkin continue their “Top Secret America” series by describing how America’s vast and growing Surveillance State now encompasses state and local law enforcement agencies, collecting and storing always-growing amounts of information about even the most innocuous activities undertaken by citizens suspected of no wrongdoing. As was true of the first several installments of their “Top Secret America,” there aren’t any particularly new revelations for those paying attention to such matters, but the picture it paints — and the fact that it is presented in an establishment organ such as The Washington Post — is nonetheless valuable.
Today, the Post reporters document how surveillance and enforcement methods pioneered in America’s foreign wars and occupations are being rapidly imported into domestic surveillance (wireless fingerprint scanners, military-grade infrared cameras, biometric face scanners, drones on the border). In sum:
The special operations units deployed overseas to kill the al-Qaeda leadership drove technological advances that are now expanding in use across the United States. On the front lines, those advances allowed the rapid fusing of biometric identification, captured computer records and cellphone numbers so troops could launch the next surprise raid. Here at home, it’s the DHS that is enamored with collecting photos, video images and other personal information about U.S. residents in the hopes of teasing out terrorists.
Meanwhile, the Obama Department of Homeland Security has rapidly expanded the scope and invasiveness of domestic surveillance programs — justified, needless to say, in the name of Terrorism:
[DHS Secretary Janet] Napolitano has taken her “See Something, Say Something” campaign far beyond the traffic signs that ask drivers coming into the nation’s capital for “Terror Tips” and to “Report Suspicious Activity.”
She recently enlisted the help of Wal-Mart, Amtrak, major sports leagues, hotel chains and metro riders. In her speeches, she compares the undertaking to the Cold War fight against communists.
“This represents a shift for our country,” she told New York City police officers and firefighters on the eve of the 9/11 anniversary this fall. “In a sense, this harkens back to when we drew on the tradition of civil defense and preparedness that predated today’s concerns.”
The results are predictable. Huge amounts of post/9-11 anti-Terrorism money flooded state and local agencies that confront virtually no Terrorism threats, and they thus use these funds to purchase technologies — bought from the private-sector industry that controls and operates government surveillance programs — for vastly increased monitoring and file-keeping on ordinary citizens suspected of no wrongdoing. The always-increasing cooperation between federal, state and local agencies — and among and within federal agencies — has spawned massive data bases of information containing the activities of millions of American citizens. “There are 96 million sets of fingerprints” in the FBI’s data base, the Post reports. Moreover, the FBI uses its “suspicious activities record” program (SAR) to collect and store endless amounts of information about innocent Americans:
At the same time that the FBI is expanding its West Virginia database, it is building a vast repository controlled by people who work in a top-secret vault on the fourth floor of the J. Edgar Hoover FBI Building in Washington. This one stores the profiles of tens of thousands of Americans and legal residents who are not accused of any crime. What they have done is appear to be acting suspiciously to a town sheriff, a traffic cop or even a neighbor.
To get a sense for what kind of information ends up being stored — based on the most innocuous conduct — read this page from their article describing Suspicious Activity Report No3821. Even the FBI admits the huge waste all of this is — “‘Ninety-nine percent doesn’t pan out or lead to anything’ said Richard Lambert Jr., the special agent in charge of the FBI’s Knoxville office” — but, as history conclusively proves, data collected on citizens will be put to some use even if it reveals no criminality.
Again, none of this is particularly surprising. Battlefield technologies almost always “migrate” to use at home, depending on its application and the cost. The city of LA had halftracks used in combating drug trafficking more than two decades ago, for one example, parodied in the movie Die Hard. The FBI collects data from many people and always has, which is one of the reasons why releasing the raw FBI files on political figures to the Clinton White House was such an egregious act. What they do with the data is, of course, the greater consideration. Picking the wrong imams isn’t just limited to “some law enforcement agencies,” as the Pentagon’s relationship with Anwar al-Awlaki demonstrated. The problem of government agencies acting with less than optimal efficiency at working across boundaries is hardly new, either.
It’s still valuable to have journalists dig into these problems on a regular basis so that we can demand better performance from security groups and Congress, rather than just shrug at inefficiency, waste, and abuses of power. But Liz Goodwin’s “5 most surprising revelations” from the WaPo entry today at Yahoo read as though Goodwin has never before reviewed governmental performance:
The FBI has 161,948 suspicious activity files on “tens of thousands” of Americans – The FBI set up hotlines and websites for tips on terrorism immediately after 9/11. Each tip presumably opens up a file. In nine years, the effort has produced less than 20,000 tips per year and (assuming the maximum range of tens of thousands) about 10,000 suspects a year. That doesn’t seem very surprising to me. That they haven’t arrested anywhere near that many people is a function of what an investigation produces. Maintaining files on dead probes doesn’t mean anything, unless they get leaked.
DHS has no idea how much it’s spending on liaison efforts to local agencies – I’d guess that many agencies don’t really know how much they spend on any one aspect of their operations. DHS is a huge federal agency, employing 216,000 people with an overall budget of about $52 billion with varied and overlapping jurisdictions.
Local officials in these “fusion centers” get little or no training – Surprise! Government bureaucracies are notoriously inefficient. That’s why it’s a good idea to limit them to tasks that only government can and should do — although it’s worth pointing out that this happens to be one of those tasks.
Local agencies are “left without guidance” from DHS – This is really the same thing as #3, isn’t it, or at least the same root problem? She points out that among those groups suspected of potential terrorist activity by state and local authorities were Tea Party activists, historically black colleges, and a group that campaigned for human rights and bike lanes. Again, that might have been based on tips received and followed up by the agencies, but also again, it’s part of a lack of competence and accountability endemic in bureaucracies.
State and local agencies are taking counterterrorist funding and using it to support regular law-enforcement efforts instead – Who couldn’t have seen that coming? These funds are usually given in bloc grants, which means the recipient can use the money for whatever purpose they desire. All they need is a tenuous link to the original purpose of the funds to make it pass muster, and it’s certainly arguable that by enforcing the state and local law more vigorously, local law enforcement might be able to flush out terrorists. However, this is a problem because it makes local law enforcement dependent on federal funding, which is a bad idea in principle. Communities should pay for their own law enforcement needs and let the feds concentrate on actual federal crimes.
These aren’t surprises at all. They are, however, issues that need to be corrected — and it appears that the first item on correction should be a rethink of DHS and its top-heavy bureaucracy.
Military technology has a tendency to trickle down to civilian applications, as evidenced by the fact that you’re reading this story on the internet that Darpa helped create. Usually that takes time, but police departments across the country are fielding tools that the military developed to keep tabs on insurgents are now in place to see if you’ve got any outstanding arrest warrants. That’s what the Washington Post found for the latest installment of its series on the expanding surveillance state: Arizona’s Maricopa County, for instance, keeps a database sized at “9,000 biometric digital mug shots a month.”
Here’s how the proliferation of biometrics works, as the Post discovers. The Department of Homeland Security wants more data points on potential homegrown terrorists. Through Federal-state law enforcement “fusion centers,” federal grants help finance law enforcement’s acquisition of ID tools like HIIDE, as well as powerful surveillance cameras and sensors. Police incorporate them into their regular law-enforcement duties, picking up information on suspects and using them to cut down on the time it takes to figure out who’s evading arrest.
As the military learned, positive identification depends on having a large data set of known insurgents. Cops and the feds are going just as broad. Fingerprint information from crime records gets sent to a FBI datafarm in West Virginia, where they “mingle” with prints from detainees in Iraq, Afghanistan and elsewhere. Military and Homeland Security officials can search through the FBI database for possible connections to terrorists.
It’s unclear if there are minimization procedures in place to void someone’s fingerprints in the datafarm after a distinct period of time, or how serious a crime has to be to merit a bioscan getting sent to West Virginia. And in many cases, the technology at use here just accelerates the speed at which, say, prints from a police station get sent to the FBI, rather than making the difference between inclusion at the datafarm and remaining at the police station. But it certainly looks like there’s not such a lag time between tech developed for a complex insurgency finding applications for crime-fighting at home.
Luckily, this stuff is only creepy when there’s a Republican President. Otherwise I’d be worried. But as we all know, to worry about this when there’s a Democrat in the White House is merely a sign of the “paranoid strain” in American politics.
Bradley Manning, the 22-year-old U.S. Army Private accused of leaking classified documents to WikiLeaks, has never been convicted of that crime, nor of any other crime. Despite that, he has been detained at the U.S. Marine brig in Quantico, Virginia for five months — and for two months before that in a military jail in Kuwait — under conditions that constitute cruel and inhumane treatment and, by the standards of many nations, even torture. Interviews with several people directly familiar with the conditions of Manning’s detention, ultimately including a Quantico brig official (Lt. Brian Villiard) who confirmed much of what they conveyed, establishes that the accused leaker is subjected to detention conditions likely to create long-term psychological injuries.
Since his arrest in May, Manning has been a model detainee, without any episodes of violence or disciplinary problems. He nonetheless was declared from the start to be a “Maximum Custody Detainee,” the highest and most repressive level of military detention, which then became the basis for the series of inhumane measures imposed on him.
From the beginning of his detention, Manning has been held in intensive solitary confinement. For 23 out of 24 hours every day — for seven straight months and counting — he sits completely alone in his cell. Even inside his cell, his activities are heavily restricted; he’s barred even from exercising and is under constant surveillance to enforce those restrictions. For reasons that appear completely punitive, he’s being denied many of the most basic attributes of civilized imprisonment, including even a pillow or sheets for his bed (he is not and never has been on suicide watch). For the one hour per day when he is freed from this isolation, he is barred from accessing any news or current events programs. Lt. Villiard protested that the conditions are not “like jail movies where someone gets thrown into the hole,” but confirmed that he is in solitary confinement, entirely alone in his cell except for the one hour per day he is taken out.
In sum, Manning has been subjected for many months without pause to inhumane, personality-erasing, soul-destroying, insanity-inducing conditions of isolation similar to those perfected at America’s Supermax prison in Florence, Colorado: all without so much as having been convicted of anything. And as is true of many prisoners subjected to warped treatment of this sort, the brig’s medical personnel now administer regular doses of anti-depressants to Manning to prevent his brain from snapping from the effects of this isolation.
Just by itself, the type of prolonged solitary confinement to which Manning has been subjected for many months is widely viewed around the world as highly injurious, inhumane, punitive, and arguably even a form of torture. In his widely praised March, 2009 New Yorker article — entitled “Is Long-Term Solitary Confinement Torture?” — the surgeon and journalist Atul Gawande assembled expert opinion and personal anecdotes to demonstrate that, as he put it, “all human beings experience isolation as torture.” By itself, prolonged solitary confinement routinely destroys a person’s mind and drives them into insanity. A March, 2010 article in The Journal of the American Academy of Psychiatry and the Lawexplains that “solitary confinement is recognized as difficult to withstand; indeed, psychological stressors such as isolation can be as clinically distressing as physical torture.”
For that reason, many Western nations — and even some non-Western nations notorious for human rights abuses — refuse to employ prolonged solitary confinement except in the most extreme cases of prisoner violence. “It’s an awful thing, solitary,” John McCain wrote of his experience in isolated confinement in Vietnam. “It crushes your spirit.” As Gawande documented: “A U.S. military study of almost a hundred and fifty naval aviators returned from imprisonment in Vietnam . . . reported that they found social isolation to be as torturous and agonizing as any physical abuse they suffered.” Gawande explained that America’s application of this form of torture to its own citizens is what spawned the torture regime which President Obama vowed to end:
This past year, both the Republican and the Democratic Presidential candidates came out firmly for banning torture and closing the facility in Guantánamo Bay, where hundreds of prisoners have been held in years-long isolation. Neither Barack Obama nor John McCain, however, addressed the question of whether prolonged solitary confinement is torture. . . .
This is the dark side of American exceptionalism. . . . Our willingness to discard these standards for American prisoners made it easy to discard the Geneva Conventions prohibiting similar treatment of foreign prisoners of war, to the detriment of America’s moral stature in the world. In much the same way that a previous generation of Americans countenanced legalized segregation, ours has countenanced legalized torture. And there is no clearer manifestation of this than our routine use of solitary confinement . . . .
It’s one thing to impose such punitive, barbaric measures on convicts who have proven to be violent when around other prisoners; at the Supermax in Florence, inmates convicted of the most heinous crimes and who pose a threat to prison order and the safety of others are subjected to worse treatment than what Manning experiences. But it’s another thing entirely to impose such conditions on individuals, like Manning, who have been convicted of nothing and have never demonstrated an iota of physical threat or disorder.
Appropriately, Glenn links to this truly harrowing New Yorker piece on long-term solitary confinement. I don’t really see any argument for keeping Manning in these conditions, except a punitive one. But since he hasn’t been convicted of anything, I don’t see that argument either.
I think the worse part, is that very few people care what kind of condition the incarcerated endure. We have essentially accepted prison-rape. The New Yorker piece asks is solitary confinement torture? I’d ask, even if it is torture, whether we even care?
Thus far in the WikiLeaks saga, all the attention has circled the whistle-blowing website’s founder, with little emphasis on the whistle-blower himself. But while Julian Assange remains in custody pending an appeal of the judge’s decision to grant him bail, Salon’s Glenn Greenwald looks at a different prison, some 3,600 miles away, where accused leaker Bradley Manning has been sitting in solitary confinement in a U.S. Marine brig for five months without ever being convicted of a crime. According to Greenwald’s sources, Manning, who served a two-month stint in a military prison in Kuwait prior to being moved to Quantico, is being held as a “Maximum Custody Detainee,” despite being a model prisoner. For 23 hours a day, Manning is held in solitary confinement, without a pillow or sheets or access to the news and barred from exercising, conditions that are “likely to create long-term psychological injuries.” Wait a second, is Greenwald telling us that the U.S. government is willing to bend the law and play psychological games with people it perceives as a threat to national security? That doesn’t sound like … oh, never mind.
There is absolutely no reason for this whatsoever, other than the fact that the United States has morphed into a brutal and repressive regime that is terrified of dissent. The only difference between this treatment and what we imagine third world nations do is that we have cleaner and more modern facilities. Hell, at this point Manning would probably welcome physical torture- it would be a welcome diversion.
And yet, this goes on every day in the greatest nation in the world, the home of the free and the land of the brave. Brought to our collective knees in terror of a rosy-cheeked private who had the balls to allow our lies to be published. And for that, we must emulate those great men who have gone before us- Stalin, Pol Pot, Idi Amin, and other great human rights leader, and publicly make a show of our ability to crush one man. Because that is what this is- a message to every one else. There is no other reason to be subjecting Manning to this behavior, as he could be safely secured at any county jailhouse in this nation. Hell, he could be returned to his unit and confined to quarters, and nothing would happen.
We’re basically scum these days. It’s really sad. And I do not know how Lt. Villard and those like them live with themselves or sleep at night. I really don’t. Spare me the “they’re just following orders” crap. But we’ll go on spouting bullshit about Human Rights in every international forum we can find. American exceptionalism!
*** Update ***
For Christ’s sake, people. I simply am astounded at the lengths some of you will go to excuse this. “But I don’t like or trust Glenn Greenwald!” Who gives a shit if you don’t like him or trust him, try looking at the damned links he provides? What the hell is wrong with your cognitive skills? At the bottom of the page, there is an update which states a minor correction from THE OFFICIAL IN CHARGE OF MANNING’S DETENTION. That means they have read what Glenn said, and found one error, and corrected it. That would suggest to most people with at least one functioning synapse that, horror of horrors, Glenn’s piece is ACCURATE.
And yes manic progressives in the comments, this is on Obama. If we know about his, so does he, and he could stop it. It’s a goddamned disgrace. I didn’t realize I need to point this out explicitly, because Obama is, after all, the President and Commander-in-Chief. I sort of assumed you dullards knew this.
Imagine, for a moment, that George W. Bush had been president when the Transportation Security Administration decided to let Thanksgiving travelers choose between exposing their nether regions to a body scanner or enduring a private security massage. Democrats would have been outraged at yet another Bush-era assault on civil liberties. Liberal pundits would have outdone one another comparing the T.S.A. to this or that police state. (“In an outrage worthy of Enver Hoxha’s Albania …”) And Republicans would have leaped to the Bush administration’s defense, while accusing liberals of going soft on terrorism.
But Barack Obama is our president instead, so the body-scanner debate played out rather differently. True, some conservatives invoked 9/11 to defend the T.S.A., and some liberals denounced the measures as an affront to American liberties. Such ideological consistency, though, was the exception; mostly, the Bush-era script was read in reverse. It was the populist right that raged against body scans, and the Republican Party that moved briskly to exploit the furor. It was a Democratic administration that labored to justify the intrusive procedures, and the liberal commentariat that leaped to their defense.
This role reversal is a case study in the awesome power of the partisan mindset. Up to a point, American politics reflects abiding philosophical divisions. But people who follow politics closely — whether voters, activists or pundits — are often partisans first and ideologues second. Instead of assessing every policy on the merits, we tend to reverse-engineer the arguments required to justify whatever our own side happens to be doing. Our ideological convictions may be real enough, but our deepest conviction is often that the other guys can’t be trusted.
How potent is the psychology of partisanship? Potent enough to influence not only policy views, but our perception of broader realities as well. A majority of Democrats spent the late 1980s convinced that inflation had risen under Ronald Reagan, when it had really dropped precipitously. In 1996, a majority of Republicans claimed that the deficit had increased under Bill Clinton, when it had steadily shrunk instead. Late in the Bush presidency, Republicans were twice as likely as similarly situated Democrats to tell pollsters that the economy was performing well. In every case, the external facts mattered less than how the person being polled felt about the party in power.
This tendency is vividly illustrated by our national security debates. In the 1990s, many Democrats embraced Bill Clinton’s wars of choice in the Balkans and accepted his encroachments on civil liberties following the Oklahoma City bombing, while many Republicans tilted noninterventionist and libertarian. If Al Gore had been president on 9/11, this pattern might have persisted, with conservatives resisting the Patriot Act the way they’ve rallied against the T.S.A.’s Rapiscan technology, and Vice President Joe Lieberman prodding his fellow Democrats in a more Cheney-esque direction on detainee policy.
The TSA case, on which Douthat builds his column, is in fact quite a poor illustration — rather, a good illustration for a different point. There are many instances of the partisan dynamic working in one direction here. That is, conservatives and Republicans who had no problem with strong-arm security measures back in the Bush 43 days but are upset now. Charles Krauthammer is the classic example: forthrightly defending torture as, in limited circumstances, a necessary tool against terrorism, yet now outraged about “touching my junk” as a symbol of the intrusive state.
But are there any cases of movement the other way? Illustrations of liberals or Democrats who denounced “security theater” and TSA/DHS excesses in the Republican era, but defend them now? If such people exist, I’m not aware of them — and having beaten the “security theater” drum for many longyearsnow, I’ve been on the lookout.
The anti-security theater alliance has always included right-wing and left-wing libertarians (both exist), ACLU-style liberals, limited-government-style conservatives, and however you would choose to classify the likes of Bruce Schneier or Jeffrey Goldberg (or me). I know of Republicans who, seemingly for partisan reasons like those Douthat lays out, have joined the anti-security theater chorus. For instance, former Sen. Rick Santorum. I don’t know of a single Democrat or liberal who has peeled off and moved the opposite way just because Obama is in charge.
A harder case is Guantanamo, use of drones, and related martial-state issues. Yes, it’s true that some liberals who were vociferous in denouncing such practices under Bush have piped down. But not all (cf Glenn Greenwald etc). And I don’t know of any cases of Democrats who complained about these abuses before and now positively defend them as good parts of Obama’s policy — as opposed to inherited disasters he has not gone far enough to undo and eliminate.
So: it’s nice and fair-sounding to say that the party-first principle applies to all sides in today’s political debate. Like it would be nice and fair-sounding to say that Democrats and Republicans alike in Congress are contributing to obstructionism and party-bloc voting. Or that Fox News and NPR have equal-and-offsetting political agendas in covering the news. But it looks to me as if we’re mostly talking about the way one side operates. Recognizing that is part of facing the reality of today’s politics.
There is an understandable tendency for some of the sane right to keep pretending that there really is an equivalence in cynicism and partisanship between both Republicans and Democrats. But in truth, it’s the GOP that is now overwhelmingly the most hypocritical, inconsistent and unprincipled.
I’m quite certain that Obama did not in fact run on expanding the scope and intrusiveness of the TSA to include naked scanners and groping. I’m quite certain that many of the people defending the TSA and Obama’s various security efforts – from assassinations to drone attacks – would not be defending them were a Republican in the oval office. Furthermore, I’m pretty sure Obama himself wouldn’t support Obama policies if he were still a Senator rather than the Commander-in-Chief.
It would be one thing for Fallows to argue that folks like Krauthammer are hypocrites, or that Republicans in general are acting like hypocrites over this issue. That would hold water! But to exonerate liberals and Democrats – the very people who for years criticized the Bush administration’s overreach and security theater, and who are now directly responsible for the expansion of these policies – well, this strikes me as rather one-sided and biased on Fallows’s part. Accusing Douthat of false equivalency here doesn’t work. Both sides are responsible for this mess. If they weren’t, then the Democrats would have scaled back the security state. They haven’t. And now liberals are defending them in spite of that inconvenient fact.
There are other ways to test Ross’ claim. PATRIOT Act renewal came up for a vote earlier this year. If the “partisan mindset” is indeed awesomely powerful, it should have been the case that Republicans voted overwhelmingly against renewal. Instead, renewalpassed the House 315-97 with 90% of the nays coming from the Democratic side. The measure passed the Senate by unanimous voice vote after privacy reform amendments were stripped out at the insistence of some Senate Republicans. That tells me that aside from a handful of honorable exceptions, including Ron Paul, Walter Jones, and Jimmy Duncan, there simply aren’t very many Republican representatives who object to intrusive and authoritarian anti-terrorist legislation no matter which party controls the White House. For that matter, there aren’t enough Democratic representatives who object to this sort of legislation on principle, but there were 87. If the “partisan mindset” changed national security views as dramatically as Ross suggests, there should have been many more anti-Obama Republicans resisting renewal of the PATRIOT Act than Democrats.
We could go down the list of relevant issues, and the pattern would be the same. Partisanship does not change that much in terms of the positions taken by members of the two parties. What it can do is change the intensity of feeling. This means that antiwar activists and civil libertarians are caught in an odd bind: many of them are genuinely appalled by Obama’s continuation of Bush-era security policies on detention and surveillance (and especially by his outrageous new claim of assassination powers), they are disgusted that his administration is hiding behind the state secrets privilege to cover up for the Bush administration, and they object to escalating the war in Afghanistan. However, they know very well that the alternative to Obama is to have all of these things, plus torture, aggressive foreign policy in all directions, and possibly war with Iran.
Of course, people should be outraged by the intrusiveness of these new procedures (because the entire process is an absurd overreaction to a real, but limited threat), just as they should have been outraged by the damage done to constitutional liberties for the past decade and more in the name of anti-terrorism, but one of the reasons that there are so few members of Congress willing to cast votes against excessive anti-terrorist legislation is that their constituents do not value constitutional liberties as highly as they claim they do. More to the point, when it does not directly affect their constituents it is clear that there is even less concern for the constitutional liberties of others. Indeed, what we might conclude about a significant part of the backlash is that the slogan of the protesters is not so much “Don’t Tread On Me” as it is “Why Won’t You Leave Me Alone and Go Tread On Them?”
Jill at Brilliant at Breakfast disputes the idea that the left has been quiet on the TSA:
Karoli over at Crooks and Liars cites a much-publicized (and much maligned in the progressive blogosphere, which shows that we are far more willing to criticize our own than the right is) article in The Nation which pointed out Tyner’s role as a libertarian activist and accused him of being a shill for the Koch brothers. The C&L piece cites other commentary on the Nation article, commentary which blasted it as a smear — which it is.
What NO ONE on the left is doing is defending the use of x-ray equipment and genital-groping as a means of “keeping us safe” — not even Ruth Marcus, who seems to feel that this system may be crap but it’s all we’ve got. This is far more skepticism than we ever got from the right, which marched in lockstep to the notion that “If you haven’t done anything wrong, you have nothing to worry about” in the context of the Bush Adminstration’s appalling record on Constitutional protections.
And this is the difference between the so-called “liberal commentariat” — at least the commentariat you get if you stick your nose outside the beltway. On the left, we are having a conversation among many minds. On the right, we get only one theme: Republican Good. Obama Bad.
Yesterday, I made some distinctions between liberals and Democrats, but I think Douthat is largely right in the sense that the Democratic Party has been largely silent about the continuity between Bush and Obama on matters of national security.
The most egregious example of this, of course, was the debate over the PATRIOT Act. As I mentioned yesterday, you had Sen. Al Franken making a show of reading the Fourth Amendment to Assistant Attorney General David Kris before voting renewal out of committee. You have Attorney General Eric Holder, who prior to being AG said the Bush administration “acted in defiance of federal law” with its warrentless wiretapping program, only to narrow his critique when he became part of an administration eager to use the same powers. There’s Sen. Patrick Leahy, who voted against PATRIOT Act reauthorization in 2006 but worked with Dianne Feinstein to block Sen. Russ Feingold‘s mild oversight provisions during renewal last year. The president who once wanted to repeal the PATRIOT Act then meekly signed its extension.
Democrats have, of course, blocked funding to close Guantanamo, fallen almost silent about this administration’s aggressive use of state secrets to obscure government wrongdoing despite some early complaints, and have remained largely quiet about the administration’s use of indefinite detention, once decried as “illegal and immoral.”
To say that Democrats who criticized such things before aren’t cheering now sets an arbitrary standard. The point is that, inherited or no, Democrats have lost the urgency they once possessed regarding the expansion of executive powers in matters of national security. No where has this been more dramatic than with the president himself, who once campaigned on reversing many of the Bush-era policies that he has in fact kept in place. The fact that Democrats have meekly acquiesced to this change as opposed to cheering it wildly doesn’t speak particularly well of their integrity.
Yes, it’s facile and stupid when the media draws false equivalences between NPR and Fox News, between pre-2006 Democratic opposition and the unprecedented Republican obstructionism of the past two years. But the reality is that the supposedly tyrannical Bush-era national-security state is largely unchanged, and Democrats have mostly stopped caring because they aren’t going to accuse the leader of their party of shredding the Constitution, even though the 2006 version of him very well might have. In the process, the party has perhaps forever legitimized some of the worst aspects of Bush administration policy by giving them the prized Beltway stamp of bipartisan approval.
The GOP’s outrage over the TSA is more partisan politics than libertarian revolution, and while I’m against the new procedures, I don’t think they come close to something like legalizing torture. But Douthat is right that on matters of national security, it is accurate to say that Democrats have for the most part learned to live with policies they once found abhorrent.
Around The Sphere 
The Continued Case Of Bradley Manning
Charlie Savage at NYT:
Glenn Greenwald:
Jazz Shaw:
Emptywheel at Firedoglake:
Doug Mataconis:
Jane Hamsher at Firedoglake:
Alana Goodman at Commentary:
Doug Mataconis:
Jazz Shaw:
Andrew Sullivan:
Megan McArdle:
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Tagged as Alana Goodman, Andrew Sullivan, Charlie Savage, Commentary, Crime, Doug Mataconis, Emptywheel, Firedoglake, Glenn Greenwald, Jane Hamsher, Jazz Shaw, Megan McArdle, Military Issues, New York Times, Technology, Torture