WikiLeaks

The Importance of Being Earnest

Q Why was the United States given a heads-up by the British government on this detention?

MR. EARNEST: Again, that heads-up was provided by the British government, so you can direct that question to them.

Q Right. But was this heads-up given before he was detained or before it went public that he was detained?

MR. EARNEST: Probably wouldn’t be a heads-up if they would have told us about it after they detained him.

Q So it’s fair to say they told you they were going to do this when they saw that he was on a manifest?

MR. EARNEST: I think that is an accurate interpretation of what a heads-up is.

Q Is this gentleman on some sort of watch list for the United States? Can you look that up?

MR. EARNEST: You’d have to check with the TSA because they maintain the watch list. And I don’t know if they’d tell you or not, but you can ask them.

Q If he’s on a watch list for the U.K., would it be safe to assume then that he’s been put on a watch list in the United States?

MR. EARNEST: The level of coordination between counterterrorism and law enforcement officials in the U.K. and counterterrorism and law enforcement officials in the United States is very good. But in terms of who is on different watch lists and how our actions and their actions are coordinated is not something I’m in a position to talk about from here.

Q Did the United States government — when given the heads-up, did the United States government express any hesitancy about the U.K. doing it — about the U.K. government doing this?

MR. EARNEST: Well, again, this is the British government making a decision based on British law, on British soil, about a British law enforcement action.

Q Did the United States, when given the heads-up, just said okay?

MR. EARNEST: They gave us a heads-up, and this is something that they did not do at our direction and it’s not something that we were involved with. This is a decision that they made on their own.

Q Did the United States discourage the action?

White House Deputy Spokesperson Josh Earnest wants you to know that the decision to detain Glenn Greenwald’s partner David Miranda was done by the British on their own.

Q Josh, you’ve talked about the Mubarak detention as being a Egyptian legal matter. You’ve talked about Morsi’s politically motivated detention. And then with regard to Mr. Greenwald’s partner, you called it a “mere law enforcement action.” Given that the White House has never been shy about criticizing detention policies overseas, do you have any concerns at all about the U.K.’s law enforcement actions in this case?

MR. EARNEST: Well, what I can say is I don’t have a specific reaction other than to observe to you that this is a decision that was made by the British government and not one that was made at the request or with the involvement of the United States government.

But he’s not going to tell you anything about the secret conversations the US have with the British.

MR. EARNEST: To be honest with you, Steve, I don’t have a way to characterize for you any of the conversations between the British government and the U.S. government on this matter other than to say that this is a decision that they made on their own and not at the request of the United States. But in terms of the kinds of classified, confidential conversations that are ongoing between the U.S. and our allies in Britain, I’m not able to characterize that for you.

Q But there are consultations on this matter taking place?

MR. EARNEST: I’m telling you I’m not able to provide any insight into those conversations at all.

Ah well, perhaps this “US security official,” rather bizarrely given anonymity to pass on this British thuggish comment, offers better insight into those conversations.

One U.S. security official told Reuters that one of the main purposes of the British government’s detention and questioning of Miranda was to send a message to recipients of Snowden’s materials, including the Guardian, that the British government was serious about trying to shut down the leaks.

Josh Earnest may not want to admit to the close collaboration here, but American security officials sure seem privy to the message being sent.

 

The Bradley Manning Sentencing Dynamics

U.S. Army Private First Class Bradley Manning stands convicted of crimes under the Uniform Code of Military Justice (UCMJ). The convictions result from two events. The first was a voluntary plea of guilty by Pvt. Manning to ten lesser included charges in February, and the remainder from a verdict of guilty after trial entered by Judge Denise Lind on July 30.

The maximum possible combined sentence originally stood at 136 years for the guilty counts, but that was reduced to a maximum possible sentence of 90 years after the court entered findings of merger for several of the offenses on August 6. The “merger” resulted from the partial granting of a motion by Mr. Manning’s attorney arguing some of the offenses were effectively the same conduct and were therefore multiplicitous. The original verdict status, as well as the revised verdict status after the partial merger of offenses by the court, is contained in a very useful spreadsheet created by Alexa O’Brien (whose tireless coverage of the Manning trial has been nothing short of incredible).

Since the verdict and merger ruling, there have been two weeks of sentencing witnesses, testimony and evidence presented by both the government and defense to the court. It is not the purpose of this post to detail the testimony and evidence per se, but rather the mechanics of the sentencing process and how it will likely be carried out. For detailed coverage of the testimony and evidence, in addition to Alexa O’Brien, the reportage of Kevin Gosztola at FDL Dissenter, Julie Tate at Washington Post, Charlie Savage at New York Times and Nathan Fuller at the Bradley Manning Support Network has been outstanding.

All that is left are closing arguments and deliberation by Judge Lind on the final sentence she will hand down. So, what exactly does that portend for Bradley Manning, and how will it play out? Only Judge Lind can say what the actual sentence will be, but there is much guidance and procedural framework that is known and codified in rules, practice and procedure under the UCMJ.

Initially, the obvious should be stated, Bradley Manning is in front of an Army court martial process under the UCMJ, and while there is Continue reading

America’s Closest Ally Declares Glenn Greenwald’s Partner a Terrorist

Glenn Greenwald’s partner, David Miranda, got detained at Heathrow for 9 hours and had his electronic devices confiscated.

David Miranda, who lives with Glenn Greenwald, was returning from a trip to Berlin when he was stopped by officers at 8.30am and informed that he was to be questioned under schedule 7 of the Terrorism Act 2000. The controversial law, which applies only at airports, ports and border areas, allows officers to stop, search, question and detain individuals.

The 28-year-old was held for nine hours, the maximum the law allows before officers must release or formally arrest the individual. According to official figures, most examinations under schedule 7 – over 97% – last under an hour, and only one in 2,000 people detained are kept for more than six hours.

Miranda was then released without charge, but officials confiscated electronics equipment including his mobile phone, laptop, camera, memory sticks, DVDs and games consoles.

Aside from the outrage over the treatment of a partner of a British newspaper’s employee, consider what it means that the UK used their terrorism law to detain Miranda (had he been transiting the US, they wouldn’t have needed to use the transparently false claim of terrorism — they can and do subject people to this treatment for no reason all the time).

Does this mean the US and UK are both treating the investigation into the leak of classified information as terrorism now? If so, does that mean the US is using its counterterrorism authorities to investigate Greenwald and Snowden? Have they used the dragnet database to find their contacts?

That might explain why they apparently used the FISA Court — not an Title III warrant — to go after Lavabit.

But it significantly discredits both their effort to counter Greenwald and their counterterrorism efforts. If they’ll use terrorism to prevent further embarrassment, it’s really just a tool to go after dissidents.

Two more thoughts. First, remember that someone already stole a laptop from Greenwald’s home in Rio. I thought it unlikely then that the US or an ally did so. I think the chances are slightly higher now.

Also, I wonder how Dilma Rousseff will respond to this, especially with growing actions in Brazil against US spying. She had been moving away from the sphere of the Bolivarists in Latin America (and has a US state visit planned for this fall). But the British just treated a Brazilian citizen with the same kind of egregious treatment Europe gave to Evo Morales. Will she respond?

Update: In Glenn’s piece on this, he makes it clear that fairly high level Brazilian officials were involved in this, and none too happy about it.

I immediately contacted the Guardian, which sent lawyers to the airport, as well various Brazilian officials I know. Within the hour, several senior Brazilian officials were engaged and expressing indignation over what was being done. The Guardian has the full story here.

Despite all that, five more hours went by and neither the Guardian’s lawyers nor Brazilian officials, including the Ambassador to the UK in London, were able to obtain any information about David.

Update: Here’s the statement the Brazilian government has released.

The Brazilian government expresses grave concern about the episode that happened today in London, where a Brazilian citizen was held without communication at Heathrow airport for 9 hours, in an action based in the British anti-terrorism legislation. This measure is without justification since it involves an individual against whom there are no charges that can legitimate the use of that legislation. The Brazilian Government expects that incidents such as the one that happened to the Brazilian citizen today do not repeat.

Displacing the Reset with Russia

As you no doubt heard yesterday, Obama called off a planned meeting with Putin after the G20 next month in response to a number of things (including Russia’s increasing persecution of gays), but largely triggered by Russia’s offer of asylum to Edward Snowden.

In addition to this piece applauding that decision, Julia Ioffe wrote up all the things about our approach to Snowden in Russia that Lawrence O’Donnell deemed unfit for MSNBC last night, which echo what I said back in June. The key bullet points are:

  • You can’t back Putin into a corner and leave him no options. If you are a world leader worth your salt, and have a good diplomatic team working for you, you would know that. You would also know that when dealing with thugs like Putin, you know that things like this are better handled quietly. Here’s the thing: Putin responds to shows of strength, but only if he has room to maneuver. You can’t publicly shame him into doing something, it’s not going to get a good response. Just like it would not get a good response out of Obama.
  • The Obama administration totally fucked this up. I mean, totally. Soup to nuts. Remember the spy exchange in the summer of 2010? Ten Russian sleeper agents—which is not what Snowden is—were uncovered by the FBI in the U.S. Instead of kicking up a massive, public stink over it, the Kremlin and the White House arranged for their silent transfer to Russia in exchange for four people accused in Russia of spying for the U.S. Two planes landed on the tarmac in Vienna, ten people went one way, four people went the other way, the planes flew off, and that was it. That’s how this should have been done if the U.S. really wanted Snowden back.

You don’t back ego-driven world leaders into corners — whether it is Putin or Obama — and succeed in achieving your goals.

All that said, Reuters reported a far more interesting development than Obama blowing off the Putin meeting yesterday. The Saudis have offered to bribe Putin to back off his support of Bashar al-Assad.

Saudi Arabia has offered Russia economic incentives including a major arms deal and a pledge not to challenge Russian gas sales if Moscow scales back support for Syrian President Bashar al-Assad, Middle East sources and Western diplomats said on Wednesday.

[snip]

Syrian opposition sources close to Saudi Arabia said Prince Bandar offered to buy up to $15 billion of Russian weapons as well as ensuring that Gulf gas would not threaten Russia’s position as a main gas supplier to Europe.

In return, Saudi Arabia wanted Moscow to ease its strong support of Assad and agree not to block any future Security Council Resolution on Syria, they said.

Finally, America’s allies (and it’s unclear how involved the US was in this deal, though Bandar usually plays nicely with us) are speaking to Putin in terms of Russia’s interests, rather than insisting Assad’s overthrow benefits everyone.

I’m especially interested in Bandar’s promise to “ensur[e] that Gulf gas would not threaten Russia’s position as a main gas supplier to Europe.” That, frankly, is probably the biggest carrot on the table here. But I can imagine no way Bandar could guarantee it (did the Qataris buy in? can Bandar control fracking in Europe? and what happens if and when the Saudis succeed in getting us to overthrow the Iranians?).

It appears the Saudis are more impressed with the meeting than Putin.

One Lebanese politician close to Saudi Arabia said the meeting between Bandar and Putin lasted four hours. “The Saudis were elated about the outcome of the meeting,” said the source, without elaborating.

[snip]

Putin’s initial response to Bandar’s offer was inconclusive, diplomats say. One Western diplomat in the Middle East said the Russian leader was unlikely to trade Moscow’s recent high profile in the region for an arms deal, however substantial.

He said Russian officials also appeared skeptical that Saudi Arabia had a clear plan for stability in Syria if Assad fell.

But it at least appears to suggest that Putin would respond to discussions that acknowledged Russia’s interests, for a change. Even if Bandar can’t yet present a plan that seems plausible.

Does Putin really have to be the grown-up in the room who points out that Syria without Assad will not be stable anytime soon?

No matter what happens with Snowden, very few have acknowledged that, in addition to details of spying on Americans, he has also mapped out the backbone of our increasingly fragile hegemony over the world.  We have responded only by ratcheting up pressure, rather than attempting persuasion.

It will be interesting to see, first, whether this Saudi initiative has any better effect. And if it does, whether we’ve been included in implementing it.

Update: Washington Institute’s Simon Henderson says we weren’t part of this scheme.

The Saudi diplomatic push shows Riyadh’s determination to force the Assad regime’s collapse, which the kingdom hopes will be a strategic defeat for Iran, its regional rival in both diplomatic and religious terms. It also reflects Riyadh’s belief, shared by its Gulf Arab allies, that U.S. diplomacy on Syria lacks the necessary imagination, commitment, and energy to succeed.

[snip]

Meanwhile, the United States is apparently standing on the sidelines — despite being Riyadh’s close diplomatic partner for decades, principally in the hitherto successful policy of blocking Russia’s influence in the Middle East. In 2008, Moscow agreed to sell tanks, attack helicopters, and other equipment to the kingdom, but the deal never went through. Instead, in 2010, Washington and Riyadh negotiated a huge $60 billion defense deal (including attack helicopters), the details of which are still being finalized. The events of the past week suggest that the U.S.-Saudi partnership — which covers regional diplomacy, the Middle East peace process, the global economy, and weapons sales — is, at best, being tested. It would be optimistic to believe that the Moscow meeting will significantly reduce Russian support for the Assad regime. But meanwhile Putin will have pried open a gap between Riyadh and Washington. The results of the latest U.S.-Russian spat will be watched closely, particularly in Saudi Arabia.

I Told You So, It’s about Cybersecurity Edition

When James “Least Untruthful” Clapper released the first version of PRISM success stories and the most impressive one involved thwarting specific cyberattacks, I noted that the NSA spying was about hackers as much as terrorists.

When  “Lying Keith” Alexander answered a question about hacking China from George Stephanopoulos by talking about terror, I warned that these programs were as much about cybersecurity as terror. “Packets in flight!”

When the Guardian noted that minimization procedures allowed the circulation of US person communications collected incidentally off foreign targets if they were “necessary to understand or assess a communications security vulnerability,” I suggested those procedures fit cybersecurity targets better than terror ones.

When Ron Wyden and Mark Udall caught Lying Keith (again) in a lie about minimization, I speculated that the big thing he was hiding was that encrypted communications are kept until they are decrypted.

When I compared minimization procedures with the letter of the law and discovered the NSA had secretly created for itself the ability to keep US person communications that pose a serious threat to property (rather than life or body), I suggested this better targeted cyber criminals than terrorists.

When Joel Brenner suggested Ron Wyden was being dishonorable for asking James Clapper a yes or no question in March 2013, I noted that Wyden’s question actually referred to lies Lying Alexander had told the previous year at DefCon that hid, in part, how hackers’ communications are treated.

When the Guardian happened to publish evidence the NSA considers encryption evidence of terrorism the same day that Keith Alexander spokes to a bunch of encrypters exclusively about terrorism, I suggested he might not want to talk to those people about how these programs are really used.

And when I showed how Lying Keith neglected his boss’ earlier emphasis on cyber in his speech to BlackHat in favor of terror times 27, I observed Lying Keith’s June exhortation that “we’ve got to have this debate with our country,” somehow didn’t extend to debating with hackers.

I told you it would come to this:

U.S. officials say NSA leaks may hamper cyber policy debate

Over two months after Edward Snowden’s first disclosures, the cyberwarriors are now admitting disclosures about how vast is NSA’s existing power — however hidden behind the impetus of terror terror terror — might lead Congress to question further empowering NSA to fight cyberwar.

I told you so. Continue reading

Shut Down CyberCommand — US CyberCommander Keith Alexander Doesn’t Think It’s Important

Back on March 12 — in the same hearing where he lied to Ron Wyden about whether the intelligence community collects data on millions of Americans — James Clapper also implied that “cyber” was the biggest threat to the United States.

So when it comes to the distinct threat areas, our statement this year leads with cyber. And it’s hard to overemphasize its significance. Increasingly, state and non-state actors are gaining and using cyber expertise. They apply cyber techniques and capabilities to achieve strategic objectives by gathering sensitive information from public- and private sector entities, controlling the content and flow of information, and challenging perceived adversaries in cyberspace.

That was the big takeaway from Clapper’s Worldwide Threat Assessment. Not that he had lied to Wyden, but that that cyber had become a bigger threat than terrorism.

How strange, then, that the US CyberCommander (and Director of National Security) Keith Alexander mentioned cyber threats just once when he keynoted BlackHat the other day.

But this information and the way our country has put it together is something that we should also put forward as an example for the rest of the world, because what comes out is we’re collecting everything. That is not true. What we’re doing is for foreign intelligence purposes to go after counterterrorism, counterproliferation, cyberattacks. And it’s focused. [my emphasis]

That was it.

The sole mention of the threat his boss had suggested was the biggest threat to the US less than 5 months earlier. “Counterterrorism, counterproliferation, cyberattacks. and it’s focused.”

The sole mention of the threat that his audience of computer security professionals are uniquely qualified to help with.

Compare that to his 27 mentions of “terror” (one — the one with the question mark — may have been a mistranscription):

terrorists … terrorism … terrorist attacks … counterterrorism … counterterrorism … terrorists … counterterrorism … terrorist organizations … terrorist activities … terrorist … terrorist activities … counterterrorism nexus … terrorist actor … terrorist? … terrorism … terrorist … terrorists … imminent terrorist attack … terrorist … terrorist-related actor … another terrorist … terrorist-related activities … terrorist activities … stopping terrorism … future terrorist attacks … terrorist plots … terrorist associations

That was the speech the US CyberCommander chose to deliver to one of the premiere group of cybersecurity professionals in the world.

Terror terror terror.

Sitting among you are people who mean us harm

… US CyberCommander Alexander also said.

Apparently, Alexander and Clapper’s previous intense focus on stopping hacktavists and cyberattacks and cybertheft and cyber espionage have all been preempted by the necessity of scaring people into accepting the various dragnets that NSA has deployed against Americans.

Which, I guess, shows us the true seriousness of the cyber threat.

To be fair to our CyberCommander, he told a slightly different story back on June 27, when he addressed the Armed Forces Communications and Electronics Association International Cyber Symposium.

Sure, he started by addressing Edwards Snowden’s leaks.

But then he talked about a debate he was prepared to have.

I do think it’s important to put that on the table, because as we go into cyber and look at–for cyber in the future, we’ve got to have this debate with our country. How are we going to protect the nation in cyberspace? And I think this is a debate that is going to have all the key elements of the executive branch–that’s DHS, FBI, DOD, Cyber Command, NSA and other partners–with our allies and with industry. We’ve got to figure how we’re going to work together.

How are we going to protect the nation in cyberspace? he asked a bunch of Military Intelligence Industrial Complex types.

At his cyber speech, Alexander also described his plan to build, train, and field one-third of the force by September 30 — something you might think he would have mentioned at BlackHat.

Not a hint of that.

Our US CyberCommander said — to a bunch of industry types — that we need to have a debate about how to protect the nation in cyberspace.

But then, a month later, with the group who are probably most fit to debate him on precisely those issues, he was all but silent.

Just terror terror terror.

Manning Faces Up to 136 Years in Prison for Alerting You to What Your Government Does in Your Name

Bradley Manning is innocent, according to Judge Colonel Denise Lind, of aiding the enemy.

With this verdict, truly horrible consequences for freedom of speech are averted.

Nevertheless, according to the invaluable Alexa O’Brien, Manning still faces a maximum 136 years for the 20 (out of 22) charges on which he was found guilty. [corrected total number of charges/guilty verdicts]

When Manning plead guilty in February to 10 lesser charges (Lind accepted 2 of those pleas), he said he hoped his leaks “could spark a domestic debate on the role of the military and our foreign policy in general as it related to Iraq and Afghanistan.” For that, the government accused him of being a traitor.

Lind agreed with the government on almost every other issue but that one. And for his efforts, Manning may well spend the rest of his life in prison.

Update: Here’s my longer take at Salon. Note this bit:

There is one more significant detail in Lind’s ruling today. In addition to aiding the enemy, the one other charge she found Manning innocent of involved leaking a video of a civilian massacre in Garani, Afghanstan. While Manning admitted accessing the video, the government insisted he had leaked it months before Manning admitted to accessing the video (and before forensic evidence showed he had). This claim — one Lind said they did not prove — was key to their claims that Manning had planned to leak to WikiLeaks from the start of his deployment to Iraq.

MIT Releases Its Own Swartz Investigation After Stalling Release of Secret Service’s

MIT has just released its report on the university’s role in the investigation into Aaron Swartz.

Part of it explains how the Secret Service came to be involved in the investigation.

The MIT Police decided that the situation required expertise in computer crime and forensics, which they did not have. They therefore telephoned the Cambridge Police Department detective who is their normal contact for assistance with computer-related crime activity.19 The Cambridge detective they contacted was a member of the New England Electronic Crimes Task Force.20 When he received the call for assistance from the MIT Police, the detective was working at the Task Force field office in a federal building in Boston, together with other law enforcement officers whose agencies participate in the Task Force. He responded to the call, accompanied by two other Task Force members: a special agent21 of the U.S. Secret Service; and a detective from the Boston Police Department. They arrived at the Building 16 closet around 11:00 a.m.

We note that no one from MIT called the Secret Service. The MIT Police contacted the Cambridge detective by calling him on his individual cell phone. The special agent became involved because he accompanied the Cambridge detective. As a Task Force member, the detective would sometimes respond to calls alone, and sometimes respond in the company of other members of the Task Force. The MIT Police were aware that other members of the Task Force might accompany the detective, and that Task Force members included Secret Service agents.

[snip]

During the morning’s activities in the basement closet, the special agent had asked for whatever electronic records MIT might have on the matter. As it is IS&T’s protocol to obtain approval from MIT’s Office of the General Counsel (OGC) before releasing information or materials to outside law enforcement agencies, IS&T contacted the OGC, which responded that it was appropriate to comply with the agent’s request in view of the fact that law enforcement was conducting an investigation into what was potentially ongoing criminal activity of unknown scope, and it did not appear to OGC that such information would disclose personally identifiable information.

The report also provides this far less convincing description of how an MIT cop just happened to see Swartz close to his home and the Secret Service Agent just happened to be present at the time.

At approximately 2:00 p.m. an MIT Police officer was driving to the Stata garage after his shift in an unmarked police cruiser. He was familiar with the investigation and had been informed by radio that the laptop had been removed from the basement closet. He had seen the January 4 video of the suspect, as well as stills made from the video, and he had a still with him in his cruiser. On Vassar Street, near Massachusetts Avenue, he saw a cyclist pass him heading in the opposite direction. Based upon the stills and video, and given the backpack and clothes the cyclist was wearing, the officer observed that the cyclist matched the description of the suspect from the basement closet. He made a U-turn to follow the cyclist, who turned onto Massachusetts Avenue and proceeded north towards Harvard Square. When the officer reached the cyclist and pulled alongside, he rechecked the still photos that he had in his car and concluded that the cyclist was in fact the person in the photos. He immediately called his department for backup. A second MIT Police officer, accompanied by the special agent, responded by car from the MIT Police station.

This may well be how the federal investigation into Aaron Swartz started and how it happened that the Secret Service immediately took the lead.

But I do find the timing of MIT’s report release rather interesting. After all, just 12 days ago, they successfully moved to prevent the imminent disclosure of the Secret Service’s own reports on the investigation to Wired’s Kevin Poulsen.

Eric Holder: Well, Maybe Just a Little Forced Nudity and Solitary Confinement…

Eric Holder has written a letter to Russian Minister of Justice Alexander Valdimirovich Konovalov. In it, he claims to address the issues Edward Snowden raised in his application for asylum to Russia (I’m not sure he accurately represents the claim — in other asylum applications Snowden made a clear case he was charged with a political crime, which Holder doesn’t mention at all).

The letter assures Konovalov that the charges currently charged don’t carry the death penalty and the government wouldn’t seek the death penalty if he were charged with such crimes.

But it also offers this guarantee that Snowden won’t be tortured:

Second, Mr. Snowden will not be tortured. Torture is unlawful in the United States.

That’s it! The guy whose DOJ reviewed but chose not to charge a bunch of CIA torturers (and those who obstructed investigations into that torture) says torture is illegal here and therefore Snowden wouldn’t be tortured.

Assuming, of course, you believe the forced nudity and solitary confinement Bradley Manning was illegally (per the judge in his case) subjected to doesn’t amount to torture. I’m sure Vladimir Putin would agree, but much of the civilized world does not.

In other curious assurances, Holder promises that Snowden would have the right to counsel.

Any questioning of Mr. Snowden could be conducted only with his consent: his participation would be entirely voluntary, and his legal counsel would be present should he wish it.

I guess Holder ought to tell Dzhokhar Tsarnaev about this return to the good old days, because he asked for a lawyer several times under questioning before he got one.

These assurances are all very nice. But more and more, such assurances are easily disproven by our recent history. Again, I don’t think Vlad Putin gives a great shit about all that. But ultimately this increasingly shoddy recent history will hurt such claims in the international realm.

Negative Manning Decision and the Future of Investigative Journalism

imagesLittle more than few hours ago, a critical ruling was handed down by Judge Denise Lind in the Bradley Manning UCMJ prosecution ongoing at Fort Meade. The decision was on based on this motion by the defense seeking dismissal of the “Aiding the Enemy” charge, among others in the prosecution.

To make a long, even if sadly predictable, story short, the motion was denied by Judge Lind and the charge will proceed to determination on the merits. This is, to be sure, a nod to the prosecution (which is actually the standard in such motions for directed verdicts during trials; that is the facts are taken in the light most favorable to the non-moving party, the government). It is also, obviously, a blow to the defense, although undoubtedly an expected one for defense attorney David Coombs. There is a very outside chance of a silver lining I will discuss below.

Julie Tate at the Washington Post sets the table:

The motion to dismiss the charge was filed July 4 by Manning’s civilian defense attorney. He argued that the government had failed to show that Manning “had ‘actual knowledge’ that by giving information to WikiLeaks, he was giving information to an enemy of the United States.” He said the government did introduce evidence “which might establish that PFC Manning ‘inadvertently, accidentally, or negligently’ gave intelligence to the enemy,” but that this was not enough to prove the most serious charge against him, known as an Article 104 offense.

On two separate occasions, Lind, an Army colonel, had questioned military prosecutors about whether they would be pursuing the charge if the information had been leaked directly to The Washington Post or the New York Times. Each time, the prosecution said it would. That troubles advocates for whistleblowers, who fear that the leaking of national defense information that appears online, as it inevitably does, can be construed as assisting the enemy.

If convicted of aiding the enemy, Manning, an intelligence analyst who served in Iraq, could face life in prison.

That describes the motion and the stakes as to Manning. Julie’s article also gives more particulars on the denial this morning, and is worth a read. For a tick tock, please see the continuously good coverage by Kevin Gosztola of Firedoglake.

But as enormous as the stakes are for Bradley Manning, the enterprise of investigative journalism is also on trial, even if in an indirect manner.

Yet another journalist who has tirelessly, and superbly, covered the Manning prosecution, Alexis O’Brien, has written at the Daily Beast, the stakes for investigative journalism are also life and/or death in the face of the security/surveillance state. Citing the in court, and on the trial record, compelling testimony of Professor Yochai Benkler of Harvard Law School, Alexis related:

In a historic elocution in court last week, Prof. Yochai Benkler, co-director of the Berkman Center for Internet and Society at Harvard Law School, told Lind that “the cost of finding Pfc. Manning guilty of aiding the enemy would impose” too great a burden on the “willingness of people of good conscience but not infinite courage to come forward,” and “would severely undermine the way in which leak-based investigative journalism has worked in the tradition of [the] free press in the United States.”

“[I]f handing materials over to an organization that can be read by anyone with an internet connection, means that you are handing [it] over to the enemy—that essentially means that any leak to a media organization that can be read by any enemy anywhere in the world, becomes automatically aiding the enemy,” said Benkler. “[T]hat can’t possibly be the claim,” he added.

Benkler testified that WikiLeaks was a new mode of digital journalism that fit into a distributed model of emergent newsgathering and dissemination in the Internet age, what he termed the “networked Fourth Estate.” When asked by the prosecution if “mass document leaking is somewhat inconsistent with journalism,” Benkler responded that analysis of large data sets like the Iraq War Logs provides insight not found in one or two documents containing a “smoking gun.” The Iraq War Logs, he said, provided an alternative, independent count of casualties “based on formal documents that allowed for an analysis that was uncorrelated with the analysis that already came with an understanding of its political consequences.”

Those really are the stakes in the, now, not all that new age of digital journalism. When the prosecutors in the Manning trial, upon direct questioning by Judge Lind as to whether they would still prosecute Manning if his leaks had been delivered straight to the New York Times or Washington Post, it had to be a wake up call for traditional media. Or so you would think. But, really, the outrage has been far greater over the James Rosen/Fox subpoena that could, and arguably should, be considered relative peanuts.

But, Yochai Benkler is right as to the import of the consideration as to Wikileaks in the Manning case.

In closing, the one slim and thin ray of limited hope from today’s ruling by Denise Lind: If I were Lind and cared at all about the ultimate verdict on Pvt. Bradley Manning, I too would have made this ruling. Why, you ask? Well, because a dismissal on the motion would have been the equivalent of a directed verdict on the law and would be far easier to overturn on appeal than a decision on the merits that the government has not met its burden of proof. Is this possible; sure, it certainly is. Is this likely; no, I would not make any substantial bets on it.

Emptywheel Twitterverse
bmaz The NCAA quietly proposed a major structural reform yesterday. It's still horrid and here's why: http://t.co/kRKTgn5FDF
58mreplyretweetfavorite
bmaz Did Northwestern Unionizing Just Cause Real NCAA Reform? No, Not At All http://t.co/kRKTgn5FDF
59mreplyretweetfavorite
bmaz RT @SpyTalker: More on "Murder in Juarez" http://t.co/DNdOQl1ei2
1hreplyretweetfavorite
bmaz @MonaHol Little known fact: my wife and I went as Al and Peg Bundy one Halloween. Pretty funny.
1hreplyretweetfavorite
bmaz @MonaHol This is true!
1hreplyretweetfavorite
bmaz @yeselson Me too. Also shove on the hip during the shot.
2hreplyretweetfavorite
bmaz Tough blocking call in that situation, looks like a bad call.
2hreplyretweetfavorite
bmaz @ericisbeautiful Yes. And for all his reputation, it's about time he came thru in playoff clutch situation.
2hreplyretweetfavorite
bmaz .@misterdevans No question. And Cliven Bundy is a pernicious and racist dolt at that. But he didn't murder 30 young girls like Ted Bundy.
2hreplyretweetfavorite
bmaz RT @Olivianuzzi: Kelly Bundy > Ted Bundy > Cliven Bundy http://t.co/nuxmNUhT8p @thedailybeast
2hreplyretweetfavorite
bmaz Listen, Cliven Bundy is a horrible human being, granted; but if you are cute tweeting that he's worse than Ted Bundy, just get out.
2hreplyretweetfavorite
bmaz @BradMossEsq I have seen approximately none in the jurisdictions I practice in.
2hreplyretweetfavorite
April 2014
S M T W T F S
« Mar    
 12345
6789101112
13141516171819
20212223242526
27282930