Throwing our PATRIOT at Assange

Last week, U.S. Attorney General Eric Holder admitted what bmaz laid out yesterday — the problems with prosecuting WikiLeaks’ Julian Assange under the Espionage Act. But at the same time, he said, the Espionage Act may play a role in a possible Assange indictment.

“I don’t want to get into specifics here, but people would have a misimpression if the only statute you think that we are looking at is the Espionage Act,” Mr. Holder said Monday at a news conference. “That is certainly something that might play a role, but there are other statutes, other tools that we have at our disposal.”

So even with all the problems in applying the Espionage Act to Assange, Holder is still invoking the provision in his discussion of the “tools that we have at our disposal” to combat Assange.

Legally, the stance could have import beyond the question of whether or not they can indict him.

Consider, for example, this language on the National Security Letter provision of the PATRIOT Act, which allows the FBI, with no court oversight, to require financial service and telecommunications providers to  turn over data pertaining to any investigation the Department of Justice asserts is an espionage investigation:

A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.

The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may—

request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; [my emphasis]

Or this language from Section 215 of the PATRIOT Act, which allows the FBI, with FISA Court approval, to require private businesses to secretly turn over a broad range of business records or tangible items pertaining to any investigation DOJ asserts is an espionage investigation.

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution. [my emphasis]

Between these two provisions, the government can collect a wide range of information on US persons — things like donations via credit card and server data — simply by claiming the investigation involves spying. They don’t have to even claim there’s a connection between those US persons making those donations or accessing the particular server and the alleged spy. They don’t have to prove that the case involves spying or that they have the ability to indict under the Espionage Act. They only have to claim they are pursuing an authorized — ultimately, the AG does the authorizing — investigation to protect against spying.

Which is what the Attorney General is suggesting here, that they are investigating Assange and the Espionage Act might play a role.

Mind you, they’d also have to claim (to themselves, in the case of the NSL, to FISC in the case of Section 215) that they were collecting data on a US person for reasons above and beyond that person’s First Amendment right to read stuff on the InterToobz or donate to people the government is loosely alleging may be sort of like a spy. Mind you, if the government did collect — say — the names of Americans donating to WikiLeaks via MasterCard or Visa or Paypal, or the names of Americans accessing the WikiLeaks site for the day Amazon hosted it, those people might have a great lawsuit claiming they had been targeted for First Amendment protected activities.

If they ever found out they were targeted.

But of course, we don’t have any way of knowing whether the government decided to use the PATRIOT Act provisions allowing them to collect data on Americans so long as they assert a connection to an Espionage investigation. Because that all remains secret.

Now, I have no idea whether the government is doing this (though I could imagine that if financial service providers like MasterCard and Visa got a really onerous request from DOJ, they might choose to end their relationship with Assange rather than provide ongoing compliance with the DOJ request).

But it seems these PATRIOT provisions are just the tip of the iceberg of potential investigative techniques they could have access to (FISA wiretaps are another) based on the stance that DOJ is investigating Assange for spying, whether or not they ever intend to charge him with spying.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

26 replies
    • JamesJoyce says:

      The Boston Globe is a total corporate whore, as are most newspapers in America. No free press! Just a mouthpieces for corporate scum buggery!

  1. JamesJoyce says:

    Fuck that first amendment? I’m sure Nazis had no problem using some rendition of “states secrets/national security” to hide behind and keep the German people in darkness. “Assange” is not the problem. Our government and the corporations who buy law are the fucking problem!

  2. MadDog says:

    …But it seems these PATRIOT provisions are just the tip of the iceberg of potential investigative techniques they could have access to (FISA wiretaps are another) based on the stance that DOJ is investigating Assange for spying, whether or not they ever intend to charge him with spying.

    Another “legal” tack that I’d guess the DOJ may be using would be the catchall of “material support for terrorism”.

    The logic leap would be that by revealing these State Secrets, Assange is arming terrorists with detailed descriptions of vulnerable US targets and/or vulnerable US processes that provide information to improve terrorist targeting.

    And it also wouldn’t surprise me if the DOJ is basing their investigation more on the release of the War Logs (Afghanistan and Iraq) as they bear directly on military “secrets” rather than the Cablegate release of US Department of State information.

    In any event, the clear message from the DOJ to Assange is “Meet ham sandwich!”

  3. b2020 says:

    I do not understand the point of this post. As a general rule, I assume that if CIA and/or FBI want to eavesdrop on Assange or anybody else, in this day and age they will just go ahead. I assume that they have been doing this since the first leaks (but, not being known for their predictive abilities, not before).

    The question is, how do they manufacture grounds for extradition that would allow the UK and Swedes a minimum of face-saving kabuki.

    Which is why the post transitions quickly from “prosecuting” to “combat”?

    • bmaz says:

      Yeah, it is not about Assange, it is about all the spokes in the wheel emanating from Assange and WiliLeaks. For instance, have you ever visited the WL site? If you have, you might want to pay attention to this post, and double that if you ever donated to Wiki or any of the Assange defense funds.

    • emptywheel says:

      Yeah, sorry if I wasn’t clear.

      The complaint everyone has always had with the way PATRIOT is written is it allows the govt to collect info on US persons without first having to demonstrate–or even claim–the US persons that info pertains to have any tie to the alleged spy (or terrorist).

      So the govt could vacuum up stuff on anyone who has simply accessed the WL site, perhaps to cross reference to see if those people can prove an espionage link (or prove ties between that person and Bradley Manning, for example).

      The govt wants to criminalize Assange. One way to do that is to persecute anyone who shows favor to Assange and WL. And they can do that with PATRIOT.

  4. MadDog says:

    Totally OT…or not – Via Ben Smith over at Politico – Glenn Greenwald dumps CREW after CREW pisses on Wikileaks:

    Greenwald quits CREW over WikiLeaks

    …Greenwald writes in his letter of resignation:

    [T]he recent condemnation of WikiLeaks by Anne Weismann, purporting to speak on behalf of CREW, is both baffling and unacceptable to me. It is baffling because I cannot fathom how a group purportedly devoted to greater transparency in government could condemn an entity that has brought more transparency to governments and corporations around the world than any single other organization by far. And it is unacceptable to me because I believe defense of WikiLeaks has become one of the greatest and most important political causes that exists — certainly one to which I intend to devote myself — and I do not want to be affiliated with any group which works to undermine it.

    Weismann, CREW’s chief counsel, sharply criticized WikiLeaks on Huffington Post, approvingly quoting a condemnation of the group as “among the enemies of open society because it does not respect the rule of law.”

    The WikiLeaks controversy has explosed a gap between those on right and left who are sympathetic to the government’s secrecy concerns and those who identify more clearly as outsiders.

    UPDATE: CREW executive director Melanie Sloan responds that Greenwald’s resignation is “quite welcome.”

    “Glenn is using CREW merely as a foil for his own press ambitions rather than to make any real policy points,” she said, adding that she learned of his resignation from the press. “This is the second time recently Glenn has chosen to take his disputes with CREW public without discussing them with us.”

    Good for Glenn!

    And may the soon-to-be shill for Lanny Davis get coal in her stocking.

  5. eagleye says:

    There has been much huffing and puffing from Washington about the possible damage that could result from the release of the 250,000 cables. Sen. Lieberman, Sen. Kerry, Rep. King, and others have claimed that the leaks could endanger CIA personnel and hamper our diplomatic efforts, but I think there is an important subtext that isn’t getting enough attention– namely, the embarrassment and disruption that the leaks might cause within the corporate sector. Our diplomatic corps can withstand the inconvenience and discomfort that will arise from the leaks— but if big players like Goldman Sachs, Bank America, and Shell Oil and other business entities are caught red-handed in acts of corruption, the fallout will shake the foundation of the power elite. In my opinion, the real fear is that not that Wikileaks is going to be problematic for our government, but rather that the ongoing leaks will expose corporate criminality on a huge scale.

    • bmaz says:

      It is beyond doubtful that official State Department cables are going to show “corporate criminality on a huge scale”; this is just silly. They may show the government being more involved in interaction with foreign governments on behalf of corporations than you or I would like; but this is neither illegal, nor within some bounds, even improper. After all, assisting Americans in foreign countries is one of the designated tasks of the diplomatic offices in those countries.

      • readerOfTeaLeaves says:

        I’m inclined to agree with eagleeye’s view that the real dirt is in the corporate documents.

        But as I said at the end of the last thread on WikiLeaks, the notion that DoJ is going to press Assange and/or WikiLeaks – with no accounting for the deception that started the Iraq War, with Scooter Libby free to go about his business – is ludicrous.

        If they go after Assange and/or WikiLeaks, it only makes it more obvious that our government is in the grasp of forces that prefer to remain hidden, and use it for their own ends.

        WikiLeaks is the cat out of the bag.

        What’s one of the biggest novels talked about in 2010? The number of people that I know who are rapt and avid about the “Girl With The Dragon Tattoo”, etc, has amazed me. I’ve not read the book, but I have the sense that people don’t view hackers, nor Assange, as terrible people. Complicated, yes. Unusual, yes.

        Scooter Libby and – in my view -anyone who ‘outs’ a CIA agent is evil. Flat evil.

        Assange, the Guardian, the NYT, and the other media are doing no such thing – if anything, they’ve spent tremendous effort to find a way to reveal background data without revealing identities of sources who were not ‘okay’ to reveal.
        That is 180 degrees different from the venal shit that Cheney, Libby, Hadley, Bolton, Rove, and the rest of those asshats pulled — and NONE of them went to jail.

        I’m suffering from severe hypocrisy overload on the whole topic of WikiLeaks.

        The more that the US government brays about the whole WikiLeaks releases, the more idiotic it looks. It’s just embarrassing. Even people that I know who don’t work with computers seem to be looking at this whole situation and shaking their heads.

        • sona says:

          there is no doubt that ‘they’ are after assange and would like to destroy his reputation and sink wikileaks

          his current troubles suggest that but in their attempt to destroy his reputation, they have managed to make him a hero and outside the USA, it would be very difficult for any democratic government to do that

          sweden has yet to charge him formally – they are demanding his extradition for questioning and this after he spent 40 days in sweden after they reopened the case in another jurisdiction with a second prosecutor when he had indicated he was available to answer their questions

          the accusers’ complaints, made a week after the event and in collusion, were dismissed initially by the first prosecutor and it now appears one of the accusers has withdrawn from pursuing the case any further

          the other accuser has published some weird rants on facebook and carries less credibility

          you say

          that people don’t view hackers, nor Assange, as terrible people

          assange was a hacker in his teens, when he was 15 years of age but he had gone onto attain a PhD in physics by the time he was 25 years of age – so that label of hacker is another slur to detract from what he has to say

          i have also come across references to him as an anarchist – that is not a crime anywhere but equating someone who demands transparent accountability for what is done with taxpayers’ funds in their name does not equate to anarchism

          i am inclined to agree

          that the real dirt is in the corporate documents

          which would explain the over the top theatrics of the US establishment

  6. eagleye says:


    Try actually reading my comment, it will facilitate the discussion. I wasn’t referring to corporate/government collusion and corruption– I’m referring to corporate malfeasance all on its own. We’ve haven’t seen even 1% of the 250,000 cables, and I guarantee you that there will be embarrassing and potentially incriminating material that will be problematic for the corporate sector, separate from the issue of government misbehavior. It’s also worth noting that Wikileaks already plans to dump a huge bunch of stuff on a American bank, and who knows where that will lead?

    • bmaz says:

      There is nothing in the cables released to date to support your proposition, and nothing in common sense knowledge of how diplomatic cables are framed or conveyed that would lend credence to the though they will show “huge scale corporate criminality”. I understood fully what you said; I simply am not buying it.

  7. orionATL says:

    my thought is that there is no interest or intent to try assange.

    the real interest and intent is to detain him somewhere (britain, sweden, us, australia) and then give him the jose padilla, “markless torture” torture treatment untill his mind is damaged and he reveals info the obama admin wants from him.

    “material witness” (or whatever the term is) is all obamadoj needs to hold the guy forever.

    paranoid? who me?

    check out the original request to interpol from sweden. if i recall correctly, it requests that assange be held in complete isolation without even access to a lawyer.

    i’ve been trying to find that news story/document since i read it a week or so ago but without success.

    anybody know how to access the assange court docs?

    • bmaz says:

      What court docs?

      As to the thoughts before that, I simply don’t get where anybody thinks the US is going to torture Assange of place him in indefinite detention. I understand the US does a lot of lawless things, but there needs to be some separation between what is done with individuals captured under even strained auspices of AUMF action and those that are not even remotely close. Assange falls into the latter category and there is too much international knowledge of his circumstances for the US to risk some of the absurd things that have been suggested in this thread. Not saying that the craven pukes in the government and Obama Administration might not want to do those things, just that the circumstances will not lend themselves to it in any cognizable scenario.

  8. orionATL says:


    like i said,

    find the original document/warrant/request from sweden to interpol.

    my recollection was that it said, in effect, ” hold him in isolation”.

    and, in fact, he’s already been put in isolation in britain “for his safety” –

    which might have been necessary or not.

    while i’m at it,

    the other prong of this obamsdoj effort would be

    – to intimidate american supporters so that a support wikileaks/assange wave does not get started here in the land of the free

    – to intimidate the international wikileaks membership into leaving the organization or refusing to support further releases

    – to intimidate potential providers of info to w-leaks, particularly bank employees and govt employees.

    all of this is entirely consistent with obama’s authoritarianism with respect to information, his long-standing concern with secrecy.

    the obamadoj treatment of american govt employees with legitimate complaints about nat’l secutity incompetence was warning enough.

    but it was not the first such warning –

    our prez may be what we term in our colloquial speech a “control freak”.

    • bmaz says:

      Oh, I agree with the intimidation part. No question, and you can add to that intimidation of the press both now and for the future as i said in my post yesterday. I just think there is too much scrutiny and notoriety for torture or to file him away in indefinite detention; that just won’t fly as to Assange. I forgot about the Swedish charges in terms of when you said court docs; was trying to figure out what US docs youy could be referring to – my bad.

  9. orionATL says:


    i do hope you realize just how important an essay like the one you published yesterday is in the weblog world.

    as with teevee “political analysis” shows, there is a great deal of chatter and gossip by folks, like myself, who have firm opinions on this or that but not much accurate information and only rarely a relevant professional background.

    so when you pen an essay like yesterday’s, you serve the same extremely important educational function that brad delong does with economics or scott horton does with international law or yves smith does with finance.

    without professionally grounded folks like yourself, we’d all be like the know-little, say-much journalistic gossips who infest sunday political talks fests.

  10. mui1 says:

    What they’re calling prosecution for espionage (or whatever flavour of the day) is starting to look a government sponsored media war. Reference: both Marcy’s post and See #5 in link below:
    But hey! I could be wrong.
    And man I’ve been saying over and over how dangerous and off the wall and corrupt Lieberman is. TSA, Department of Homeland security, and now all this. Plus Obama likes him. That makes it dangerous.

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