The Traditional Press’ Blind Spot in Aiding the Enemy

This post by Kevin Gosztola lays out many of the implications of the news — revealed in Bradley Manning’s statement to the court yesterday — that he tried to publish the Iraq and Afghan cables with WaPo, NYT, and Politico before he turned to WikiLeaks. He describes, as Michael Calderone has laid out at length, how NYT and WaPo claim to have no memory of Manning’s pitch.

He wonders what the NYT and WaPo would have done had they actually gotten exclusive dibs on Manning’s trove of information.

Had the Times or Post obtained the logs and begun to examine them for publication, what would the organizations have done? Would they have published? Would they have notified the government they now possessed the documents? The Timescommunicated with the government when preparing to publish State Department cables:

Because of the range of the material and the very nature of diplomacy, the embassy cables were bound to be more explosive than the War Logs. Dean Baquet, our Washington bureau chief, gave the White House an early warning on Nov. 19. The following Tuesday, two days before Thanksgiving, Baquet and two colleagues were invited to a windowless room at the State Department, where they encountered an unsmiling crowd. Representatives from the White House, the State Department, the Office of the Director of National Intelligence, the C.I.A., the Defense Intelligence Agency, the FBI and the Pentagon gathered around a conference table. Others, who never identified themselves, lined the walls. A solitary note-taker tapped away on a computer.

What would have happened to Manning? Would they have been able to protect the identity of the lower-level soldier who had passed on information because he believed they were “some of the most significant documents of our time, removing the fog of war and revealing the true nature of 21st Century asymmetric warfare.”

The example of Jeffrey Sterling, where NYT’s apparent consultation with the government on whether to publish Risen’s story about Merlin appears to have launched the investigation into Sterling, heightens this concern.

And I would also ask whether the papers would sit on the information, using it as their exclusive data, rather than releasing it to be crowd sourced and accessed by people with more expertise on particular areas. A WikiLeaks trove would have made (and to some extent has in any case) the NYT brand for some time. Would the paper have put more stock in that than in sharing the information.

After raising questions about whether NYT would expose its source in such a case, Gosztola concludes, shows the value of organizations like WikiLeaks.

This is why leaks organizations like WikiLeaks are needed. Not only do they have the power to reveal what governments are doing in secret, they also are uniquely positioned—if constructed appropriately—to protect the identity of sources in a such way that makes it near impossible for governments to pursue those blowing the whistle. It creates the possibility that employees in militaries or national security agencies can reveal what they are seeing, be conscientious citizens and at the same time keep their job and, perhaps, not risk their livelihood.

I’d add two points to that.

NYT’s normally excellent ombud, Margaret Sullivan, suggested that the paper could continue the “time-tested way” of sourcing leaks directly to reporters. Dan Froomkin argues this news proves the need for a whistleblower drop box.

Both are ignoring a very dangerous new reality of the war on leakers. They ignore the strong suggestion that DOJ’s relatively new Domestic Investigations and Operations Guide treats National Security Letters, which they can use to get call data, differently than they do subpoenas.

Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) – [my emphasis]

And while FBI does require some oversight, there appear to be at least some instances where the only oversight is sign-off by someone like a Special Agent in Charge.

The outlines of this new policy with regards to journalists who were witnesses (that is, recipients of a leak) were first reported by Charlie Savage, so the NYT shouldn’t be able to plead ignorance.

In other words, it’s not enough to make it easier for low level whistleblowers to reach out to journalists (I’m reminded that Jonathan Landay’s Iraq reporting was so much better than NYT’s because he worked with middle level officers rather than Dick Cheney). It’s not enough to improve the papers’ already notorious security vulnerabilities. There needs to be a way to counter the Administration’s assault on journalistic privacy.

Ultimately, though, big media needs to come to grips with the reality Yochai Benkler lays out. The government has already made clear (or at least claimed) they do not distinguish Manning’s leak to WikiLeaks from another whistleblower’s leaks to NYT.

The prosecution case seems designed, quite simply, to terrorize future national security whistleblowers. The charges against Manning are different from those that have been brought against other whistleblowers. “Aiding the enemy” is punishable by death. And although the prosecutors in this case are not seeking the death penalty against Manning, the precedent they are seeking to establish does not depend on the penalty. It establishes the act as a capital offense, regardless of whether prosecutors in their discretion decide to seek the death penalty in any particular case.

[snip]

Aiding the enemy is a broad and vague offense. In the past, it was used in hard-core cases where somebody handed over information about troop movements directly to someone the collaborator believed to be “the enemy,” to American POWs collaborating with North Korean captors, or to a German American citizen who was part of a German sabotage team during WWII. But the language of the statute is broad. It prohibits not only actually aiding the enemy, giving intelligence, or protecting the enemy, but also the broader crime of communicating—directly or indirectly—with the enemy without authorization. That’s the prosecution’s theory here: Manning knew that the materials would be made public, and he knew that Al Qaeda or its affiliates could read the publications in which the materials would be published. Therefore, the prosecution argues, by giving the materials to WikiLeaks, Manning was “indirectly” communicating with the enemy. Under this theory, there is no need to show that the defendant wanted or intended to aid the enemy. The prosecution must show only that he communicated the potentially harmful information, knowing that the enemy could read the publications to which he leaked the materials. This would be true whether Al Qaeda searched the WikiLeaks database or the New York Times’.

Again, the NYT should know this. In Jeffrey Sterling’s case, the government argued that it was worse for Sterling to leak to James Risen and thereby get it published in the NYT than for a paid spy to leak information directly to, say, Iran.

The defendant’s unauthorized disclosures, however, may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money. Unlike the typical espionage case where a single foreign country or intelligence agency may be the beneficiary of the unauthorized disclosure of classified information, this defendant elected to disclose the classified information publicly through the mass media. Thus, every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.

Incidentally, kudos to Josh Gerstein, who recognized when he first reported this passage that the government would use the logic to go after WikiLeaks.

The government has said, in Bradley Manning’s case and in Jeffrey Sterling’s, that it considers the production of news to be a far more pernicious threat than spies operating in the dark.

And yet the country’s most esteemed newspaper is still assuming we can just operate the old way, with direct contact with journalists.

Benkler’s penultimate paragraph asks,

If Bradley Manning is convicted of aiding the enemy, the introduction of a capital offense into the mix would dramatically elevate the threat to whistleblowers. The consequences for the ability of the press to perform its critical watchdog function in the national security arena will be dire. And then there is the principle of the thing. However technically defensible on the language of the statute, and however well-intentioned the individual prosecutors in this case may be, we have to look at ourselves in the mirror of this case and ask: Are we the America of Japanese Internment and Joseph McCarthy, or are we the America of Ida Tarbell and the Pentagon Papers? What kind of country makes communicating with the press for publication to the American public a death-eligible offense?

These are the stakes both of Manning’s prosecution and of the government’s stance more generally. We’re long past the time of hotlines.

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.

10 replies
  1. scribe says:

    To which I’ll add only one observation: how relevant are telephone toll records today, anyway?

    The long and the short of it is that a vast number of people use cell phones for most or all of their business and professional calls. Last time I checked, my cell phone does not bill me any differently for calls inside of my phone’s area code than for calls outside it. Indeed, many people keep their cell phone number even though they’ve long since moved out of the area code where they bought the phone in the first place. Area codes are just a part of a phone number, not a billing issue. “Telephone toll records” only have relevance in a situation where the phone is in a fixed location – wired to a landline.

    And (a) what journalist does a substantial proportion of his/her work from a landline and (b) how many people who are potential whistleblowers will be able to suss out the landline of a reporter (without leaving an internet trail)? There are no phone books in a lot of places where they used to be.

  2. jawbone says:

    The NYTimes has a long record of withholding information from the public at the request of (most) administrations.

    I remember being shocked to learn that the NYTimes reporter, Willan Laurence, in Japan after its surrender in WWII had written what was essentially US military propaganda about the effects of the atomic bomb dropped on Hiroshima.

    It got the NYTimes reporter a Pulitzer.

    http://www.democracynow.org/2011/8/9/atomic_cover_up_the_hidden_story

  3. Gimme Shelter says:

    The New Political Prisoners: Leakers, Hackers and Activists

    Bradley Manning

    Jeremy Hammond

    Andrew Auernheimer

    Barrett Brown

    Tim DeChristopher

    John Kiriakou

    Eric McDavid

    From environmentalists to hackers to whistleblowers, the usa government has made a policy of charging and convicting a wide range of activists across the country. To the FBI, an information transparency activist like the late Aaron Swartz is apparently more dangerous than the men who ruined the nation’s economy, and an environmentally-minded economics student poses a greater threat than the oil companies polluting America’s natural resources. The government insists that such harsh penalties are necessary to protect national security – but as hacker Jeremy Hammond said in a recent letter from prison, this misleading rhetoric ultimately “enables the politically motivated prosecution of anyone who voices dissent.”

    http://www.rollingstone.com/politics/lists/the-new-political-prisoners-leakers-hackers-and-activists-20130301

  4. LakeEffectSnow says:

    usa Drones Intercept Electronic Communications / Identify Human Targets

    New records obtained by Electronic Privacy Information Center (EPIC) under the Freedom of Information Act indicate that the Bureau of Customs and Border Protection is operating drones in the United States capable of intercepting electronic communications. The records also suggest that the ten Predator B drones operated by the agency have the capacity to recognize and identify a person on the ground. Approximately, 2/3 of the usa population is subject to surveillance by the CBP drones.

    The documents were provided in response to a request from EPIC for information about the Bureau’s use of drones across the country.

    The records obtained by EPIC raise questions abut the agency’s compliance with federal privacy laws and the scope of domestic surveillance.

    http://epic.org/2013/02/epic-foia—us-drones-intercep.html

    (via http://www.huffingtonpost.com/2013/03/01/us-border-patrol-drones_n_2792127.html?utm_hp_ref=politics)

  5. passepartout says:

    Can anyone explain how it is that Bradley Manning can’t get in touch with the WaPo, NYT or Politico yet manages to find supersnitch Adrian Lamo online? And why did Manning want to visit Politico’s offices rather than contact them online or by telephone? And why, with all the details in his story, does he not remember any names or specifics of who he contacted?

    But then this is the same Bradley Manning who worked for a rightwing, politically-connected ‘oil man’ in Oklahoma; who had a long, strange break in his Army basic training; who, while on active duty, acted like a DADT provocateur with no real consequence; who, also while on active duty, hung out in Boston with a hacker group that the FBI was desperate to infiltrate; and who told a gay activist that ‘i gave the intel field a shot… got few bites, however somehow one of my resumes ended up in an army recruiters’ hands… and came knocking at my door’.

    Might be a lot of blind spots where Bradley Manning is concerned.

  6. emptywheel says:

    @scribe: By “toll records” I meant to include everything they’re including as such, which includes cell call records (and possibly geolocation) and email metadata.

  7. PeasantParty says:

    Thank you, EW.

    We have all had reports that Osama watched CNN and used all sorts of American types of media, including investment sites. I think that prosecution is cherry picking his reading of Wikileaks to further the Govt. in their attempt to get Assange.

  8. Michael Murry says:

    Apparently, the foreign “enemy” has the ability to discern Truth from Falsehood when consulting American media outlets. Apparently, the foreign “enemy” can tell the difference between occasional glimpses of the Truth as provided by whistle-blowers like Private Bradley Manning and the tsunami of corporate garbage and lies served up by the U. S. Military/Government. If only the American people possessed such critical, skeptical sensibilities, then the U. S. Military/Government could consider them the “enemy,” too, and truth-tellers like Private Bradley Manning would indeed have “aided” them.

  9. polysensory says:

    “…every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information”

    If the government feels this way, one must also now consider corruption among the government’s crony, megamedia press, and some reporters who no longer have the character of Woodward and Bernstein (not even Woodward)! Also the government may have people working in the media,

  10. Michael Murry says:

    “…every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information”

    Yes, indeed. Really. Those foreign adversaries certainly stood to benefit greatly from observing how the U. S. Military/Government lies to its own citizens just to keep in practice; just so it won’t forget how.

    And what a shock of disappointment those foreign adversaries must feel when they discover that the U. S. Military/Government doesn’t tell the truth about its legendary, colossal fuck-ups.

    Yes, indeed. Our friends won’t respect us and our enemies won’t fear us if we stop acting so bloody stupid. You see, our friends admire our stupidity and our enemies fear it, not at all the reverse as common sense and simple logic would lead a sane person to believe.

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