No Easy Day, WikiLeaks, and Mitt’s 47%: Three Different Approaches to Illicitly-Released Information

Last week, DOD issued a guidance memo instructing DOD personnel what they are–and are not–permitted to do with the Matt Bissonnettte book, No Easy Day, that they claim has sensitive and maybe even classified information. DOD personnel,

  • are free to purchase NED;
  • are not required to store NED in containers or areas approved for the storage of classified information, unless classified statements in the book have been identified;
  • shall not discuss potentially classified and sensitive unclassified information with persons who do not have an official need to know and an appropriate security clearance;
  • who possess either firsthand knowledge of, or suspect information within NED to be classified or sensitive, shall not publically speculate or discuss potentially classified or sensitive unclassified information outside official U.S. Government channels (e.g., Chain-of-Command, Public Affairs, Security, etc.);
  • are prohibited from using unclassified government computer systems to discuss potentially classified or sensitive contents ofNED, and must not engage in online discussions via social networking or media sites regarding potentially classified or sensitive unclassified information that may be contained in NED.

The memo points to George Little’s earlier flaccid claims that the book contains classified information as the basis for this policy, even though those claims fell far short of an assertion that there was actually classified information in the book.

The strategy behind this policy seems to be to accept the massive release of this information, while prohibiting people from talking about what information in the book is classified or sensitive–or even challenging Little’s half-hearted claim that it is classified. Moreover, few of the people bound by this memo know what the President insta-declassified to be able to tell his own version of the Osama bin Laden raid, so the memo also gags discussions about information that has likely been declassified, not to mention discussions about the few areas where Bissonnette’s version differs from the Administration’s official version.

Still, it does let people access the information and talk about it generally.

Compare that policy with the Administration’s three-prong approach to WikiLeaks information:

  • Government employees cannot discuss–and are not supposed to consult at all–WikiLeaks cables. The treatment of Peter Van Buren for–among other things–linking to some WikiLeaks cables demonstrates the lengths to which the government is willing to go to silence all discussion of the cables. (Though I imagine the surveillance of social media will be similar to enforce the DOD guidance.)
  • Gitmo lawyers not only cannot discuss material–like the dodgy intelligence cable that the government used to imprison Latif until he died of still undisclosed causes or the files that cite tortured confessions to incriminate other detainees–released by WikiLeaks unless the press speaks of them first. But unlike DOD personnel who do not necessarily have a need to know, Gitmo lawyers who do have a need to know couldn’t consult WikiLeaks except in closely controlled secure conditions.
  • The Government will refuse to release cables already released under FOIA. While to some degree, this strategy parallels the DOD approach–whereas the NED policy avoids identifying which is and is not classified information, the WikiLeaks policy avoids admitting that cables everyone knows are authentic are authentic, the policy also serves to improperly hide evidence of illegal activity through improper classification.

Now, one part of the Administration’s logic behind this approach to purportedly classified information (thus far without the legal proof in either case, or even a legal effort to prove in the case of Bissonnette) is to limit discussion of information that was allegedly released via illegal means. By preventing certain classes of people from discussing certain aspects of Bissonnette’s book and the WikiLeaks cables, you ensure that political opponents don’t gain an advantage because of these leaks.

Which brings us to the Obama campaign’s treatment of the video showing Mitt Romney insulting 47% of the country. That video may have violated Federal and Florida wiretap and intrusion laws prohibiting non-consensual recordings (though as with Bissonnette’s book, prosecuting that violation would be politically and legally challenging).

Yet, in spite of the fact that the 47% video is tainted by the same kind of allegedly illicit release as No Easy Day and WikiLeaks, Obama’s campaign has had no compunctions about using it. A lot. Indeed, hitting Mitt for the content and the delivery of his 47% comments has been a cornerstone of Obama’s (and his PAC’s) campaign since the video was released.

Now, Obama might differentiate the 47% video by arguing that Mitt should have no expectation of privacy at a campaign fundraiser, as distinct from discussions with people in other countries or about operations the White House has hailed. He might argue that Mitt should not be able to shield the conversations he has with powerful donors from the citizens of the democracy he wants to represent, as distinct from the operations conducted in our name. He might claim that Mitt’s comments–including those revealing Mitt’s true beliefs about a 2-state solution–have nothing to do with national security.

But particularly in the case of a book covering the very same topics discussed openly so Obama can benefit from the OBL killing, and even in the case of WikiLeaks documents revealing our government’s crimes, those claims ring hollow. No Easy Day and WikiLeaks cables, now that they have been released, ought to be acceptable topics of discussion for all the same reasons why citizens should be permitted to talk about how much Mitt dislikes working people: such discussions are an important part of democracy.

When Obama’s ability to engage in democratic debate is at stake, he appears to be a big fan of using illicitly circulated information. Somehow, when democratic debate might limit his power, it’s a different issue.

“I’m Barack Obama, and I approve the circulation of illicitly leaked messages. Sometimes.”

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.

8 replies
  1. BSbafflesbrains says:

    Where is the Arbitrary and Capricious Clause in our Constitution? I would vote for the Obama I heard speak at the Dem Convention but I want to hide in a cave from the Obama who is acting like a combination of Neville Chamberlain and a Fascist. Actions speak louder than words Mr. President.

  2. 1789 says:

    not only did RMoney avoid paying anything close to his Fair Share but he used Insider Information to make even more effing money – i mean, when doe this sh*t end????

    Romney “uses every trick in the book” to avoid paying his Fair Share of Taxes

    In January 1999, a trust set up by Mitt Romney for his children and grandchildren reaped a 1,000 percent return on the sale of shares in Internet advertising firm DoubleClick Inc.

    The sale of DoubleClick shares received before the company went public sheds new light on Romney’s estate planning – the art of leaving assets for heirs while avoiding taxes. The Republican presidential candidate used a trust considered one of the most effective techniques for the wealthy to bypass estate and gift taxes. The Obama administration proposed cracking down on the tax benefits in February.

    more that will make you want to throw up / sharpen up the Guillotine at >>>

    http://www.bloomberg.com/news/2012-09-27/romney-i-dig-it-trust-gives-heirs-triple-benefit.html

  3. Long Walk Home says:

    well, this is quite the election – continued Drone attacks or resume Torture – geebus, nice choice(s)

    Election May Decide When Interrogation Amounts to Torture

    Neither Barack Obama nor Mitt Romney has said much about torture as part of terrorism investigations during the 2012 general campaign. But the future of American government practices when interrogating high-level terrorism suspects appears likely to turn on the outcome of the presidential election.

    In one of his first acts, President Obama issued an executive order restricting interrogators to a list of nonabusive tactics approved in the Army Field Manual. Even as he embraced a hawkish approach to other counterterrorism issues — like drone strikes, military commissions, indefinite detention and the Patriot Act — Mr. Obama has stuck to that strict no-torture policy.

    By contrast, Mr. Romney’s advisers have privately urged him to “rescind and replace President Obama’s executive order” and permit secret “enhanced interrogation techniques against high-value detainees that are safe, legal and effective in generating intelligence to save American lives,” according to an internal Romney campaign memorandum.

    http://www.nytimes.com/2012/09/28/us/politics/election-will-decide-future-of-interrogation-methods-for-terrorism-suspects.html?_r=0

  4. OrionATL says:

    “…Which brings us to the Obama campaign’s treatment of the video showing Mitt Romney insulting 47% of the country. That video may have violated Federal and Florida wiretap and intrusion laws prohibiting non-consensual recordings (though as with Bissonnette’s book, prosecuting that violation would be politically and legally challenging)…’

    very likely, it did violate florida law.

    recall that it was in florida (jacksonville area) in which a couple innocuously scanning their police scanner, recorded a conversation between u.s. speaker of the house newt gingrich and others of his republican congressional party, in which gingrich was overtly plotting to get around house ethics decisions which he had agreed to.

    result:

    why, of course, the couple was charged with violating florida law by recording the conversation. they had subsequently turned it over to their dem congressman to use politically, natch – who would be stupid enough to turn it over to a republican?

    the couple had to plead and let the lawyers and judges of florida maul them

    while gingrich suffered no consequence at all.

    this is glenn greenwald’s key point in a recent book:

    there is a two-tier system of justice in the u.s. in which mr. and mrs. big rarely suffer, while mr. and mrs. (stuart) little get the book thrown at them by prosecutors and judges too cowardly or too partisan to stand up and protect the little couple’s political speech rights –

    to hear and to repeat are first amendment rights!

  5. OrionATL says:

    @1789:

    i repeat,

    romney’s financial decisions may be shaped by his being a tightwad –

    or was he just being generous to the kids?

  6. sOLbus says:

    @OrionATL:

    Just a little aside- Yes. I recall “The War on Jim Mcdermott by Eli Sanders in the Seattle Stranger. Some fine writing, there. Jim McD did the right thing as his ethics position required and he ended up fined, hugely. That is, he did his job (he’s a hero, for sure) yet they still managed to make him a lesson of him through what seemed to me legal abuse.

  7. OrionATL says:

    as far as grand jury charges against manning, assange, and wikileaks go,

    any charge by the u.s. dept of “justice” or the u.s. dep’t of defense along the lines of “aiding and abetting the enemy”,

    demonstrates clear contempt for, and a flagrant attempt at violation of, the first amendment.

    citizens have a right to express, but they also have a right to hear, to learn new information, from which they can then express more informed opinions.

    manning, assange, and the wikileaks were clearly, unambiguously, interested in informing citizens of the u.s., europe, and asia about american conduct in the middle east.

    it is a gross lie for u.s. dep’t of justice/dod prosecutors to charge any of these three with deliberately aiding the “enemy” when they clearly were trying to inform the u.s. citizenry and citizens of other like-minded countries.

    that “enemy” individuals might overhear manning-assange-wikileaks data releases is incidental to the intent of those individuals and the intended audience of those releases.

    a federal judiciary worth it’s salt would dismiss this d-o-injustice charge for the bureaucratically inspired sophistry and claptrap it is.

    but the right-wing=republican political machine, aided by the so-called “federalist society”, has devoted years to placing deeply partisan, loyally authoritarian, right-wing republican politicians on the appeals and supreme courts.

    so the constitution, on the central issue of free speech and free hearing, is now imperiled.

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