FDL Membership: The Value Of The Firedoglake Legal Team

As you may know by now, last Tuesday morning Firedoglake rolled out its brand new membership program. Both Jane Hamsher and Teddy Partridge have eloquently explained what this means to both you and Firedoglake. And we are all in it together, and for the absolute worthiest of purposes: an independent media, kick ass activism, intelligent analysis and stimulating discussion.

There is friendship and camaraderie here at FDL, without question; but, let’s face it, the real draw is the quality content. The quality of content was always superb; but it has grown, over the years, to be truly breathtaking across the board. For all of the broad spectrum of coverage here at FDL – from the biting humor and sardonic delight of TBogg, to the cutting edge intersection of entertainment, pop and light politics of Lisa Derrick at La Figa, to the unparalleled and award winning investigative reporting, insight and analysis of Marcy Wheeler at Emptywheel, to Jane Hamsher constantly moving the spectrum balance at FDL Action, to the wonderful guests and hosts at Book Salon, to the collective at FDL Main – there is simply nothing in the dead tree press or blogosphere like Firedoglake.

What I want to focus on for a moment, because it is the area I know best, is the incredible legal team you have working for you here. Firedoglake does not just have regular bloggers, or even working journalists, interpreting complex and often confusing legal cases, decisions and situation. No, Firedoglake has a team of professional attorneys at work both in front page posts, and behind the scenes for consultation by all the other journalists to consult with and draw upon. It is a powerful combination that is unmatched anywhere else, and one of the many reasons this site is worth your hard earned dollars of support and Read more

NYT’s Selective Press Prosecution Outrage Doesn’t Include WikiLeaks

As a follow up to yesterday afternoon’s decision in the WikiLeaks grand jury subpoena case, it is, shall we say, interesting that the New York Times today comes out with and editorial slamming democracies that use secret evidence and maneuvers to prosecute journalists.

The editorial is titled No Way to Run a Democracy and it doesn’t spend one word of it on the rabid use of just those tactics in relation to WikiLeaks and Julian Assange (See here and here). Nor has there been any comparable outrage over the US actions against WikiLeaks journalists in any other NYT effort and/or article.

Now, make no mistake, the plight of investigative journalists in Turkey under threat from the administration of Prime Minister Erdogan is extremely troubling, and it is commendable that the Gray Lady has called it out. But it does make you wonder where the same outrage is in relation to the First Amendment eviscerating effort of the US Department of Justice toward WikiLeaks and Assange. An investigation which could, and if it is taken to its logical conclusion, should involve the Times itself.

Maybe it is because Bill Keller reached some agreement with the DOJ not to trash them in return for DOJ laying off the NYT during one of his endless tete a tetes with them over quashing news reporting, maybe Keller and the Times are fearful that they don’t have some kind of secret agreement with the DOJ, maybe it is the product of the merging of the media and government in the US, or maybe it is because of Keller’s irrational and unprofessional extreme dislike of, and contempt for, the “dirty” Julian Assange and WikiLeaks.

Whatever the reason, the stridence against the Erdogan government actions contrasted with the silence toward the domestic Obama government actions is telling.

WikiLeaks: Court Upholds US Subpoena For Twitter Records

In a 21 page opinion, US Magistrate Judge Theresa Buchanan of the Eastern District of Virginia District Court has just granted the United States Department of Justice subpoena demand for records in the WikiLeaks investigation.

Three people associated with WikiLeaks – Jacob Appelbaum, Birgitta Jonsdottir, and Rop Gonggrijp – had petitioned the court to vacate the subpoena and to unseal the court pleadings. The court held:

For the foregoing reasons, petitioners’ Motion to Vacate is DENIED. Petitioners’ Motion to Unseal is DENIED as to docket 10- gj-3793, and GRANTED as to the 1:11-dm-00003 docket, with the exception of the government attorney’s email address in Twitter’s Motion for Clarification (Dkt. 24), which shall be redacted. Petitioners’ request for public docketing of the material within 10-gj-3793 shall be taken under consideration. An Order shall follow.

The three WikiLeaks individuals had argued the subpoena violated constitutional protections for free speech and association; the court disagreed. Appelbaum, Gonggrijp and Jonsdottir have already stated they will appeal.

You can read the full opinion here. I will be updating the post as I read the decision.

In December of last year, the US government, upon ex parte motion, moved the EDVA Court to enter a sealed Order (“Twitter Order”) pursuant to 18 U.S.C. § 2703(d) of the Stored Communications Act, which governs government access to customer records stored by a service provider. The Twitter Order, which was unsealed on January 5, 2010, at the request of Twitter, required Twitter to turn Read more

The Shirley Sherrod Complaint Against Andrew Breitbart

As many readers already know, Shirley Sherrod has filed a lawsuit against Andrew Breitbart over his statements, and the doctored and manipulated video he published, that resulted in her to losing her job at the US Department of Agriculture. Although Ms. Sherrod was not technically fired by the Obama Administration, she was ordered to resign immediately. Ms. Sherrod promised in late July of 2010 that she would sue Breitbart, and now she has done so, with the added ironic addition of effecting service of the summons and complaint on him at the Conservative Political Action Conference (CPAC).

What no one has seen yet is the actual complaint filed in the matter. Here it is in all its 42 page glory.

The first thing you will note is that the complaint is filed against not just Andrew Breitbart, but Breitbart associate, writer and putative producer of BreitbartTV, Larry O’Connor, as well as the “John Doe” from Georgia Breitbart claims originally forwarded the video.

The second thing you will note is the complaint is framed in terms of “defamation, false light and intentional infliction of emotional distress” and was filed in the District of Columbia Superior Court. The choice of DC Superior Court is fascinating; at first glance, it appears the complaint could have been filed either in Georgia District or DC District federal courts, perhaps even a Georgia state court (although that seems more problematic). Why exactly did the plaintiff choose DC Superior Court? I have already made inquiry of Ms. Sherrod’s attorney on this question but, until a formal answer is received, I think it a safe assumption they considered it the most favorable venue for convenience, procedure and potential jury composition. And I think that is pretty smart lawyering by the way.

The complaint is long, and very well composed, but the gist of the case is contained here:

3. Although the defamatory blog post authored by Defendant Breitbart purported to show “video proof” that Mrs. Sherrod exhibited “racism” in the performance of her USDA job responsibilities, the short two-minute thirty-six (2:36) second video clip that Defendants embedded in the blog post as alleged “proof” of this defamatory accusation was, in truth, an edited excerpt from a much longer speech by Mrs. Sherrod that demonstrated exactly the opposite. In sharp contrast to the deliberately false depiction that Defendants presented in the defamatory blog post, the unabridged speech describes how, in 1986, working for a non-profit group that helped poor farmers, Mrs. Sherrod provided concern and service to a white farmer who, without her help, would almost certainly have lost his farm in rural Georgia.

4. Specifically, Defendants defamed Mrs. Sherrod by editing and publishing an intentionally false and misleading clip of Mrs. Sherrod’s speech and added the Read more

From the ChamberPot: Number Two

The Chamber of Commerce has tried to craft another non-denial denial that they engaged a bunch of private spooks to spy on people like Brad Friedman.

But it’s still a non-denial denial.

Once again, they emphasize that they didn’t pay HBGary.

The U.S. Chamber never hired or solicited proposals from HBGary, Palantir or Berico, the security firms being talked about on the web.

[snip]

No money, for any purpose, was paid to any of those three private security firms by the Chamber, or by anyone on behalf of the Chamber, including Hunton and Williams.

But as I already pointed out, that’s because they got HBGary and its partners to work for free for a month or more. Free work on the Chamber’s behalf is still work on the Chamber’s behalf.

But their more interesting tack in this re-nondenial-denial is in how they characterize HBGary (and Palantir and Berico’s) plot to spy on Chamber’s enemies. As with their last nondenial denial, they emphasize the proposal written on October 29 for Hunton & Williams rather than discussing the plot itself.

HBGary’s proposal, which has been written about by ThinkProgress, was not requested by the Chamber, it was not delivered to the Chamber, and it was never discussed with anyone at the Chamber.

Emails show the discussions with the Chamber itself happened weeks after this proposal.

Finally, like Palantir and Berico did in their apologies, the Chamber blamed it all on HBGary.

The leaked e-mails appear to show that HBGary was willing to propose questionable actions in an attempt to drum up business, but the Chamber was not aware of these proposals until HBGary’s e-mails leaked.

Note how vague this is? Note how it portrays the spying HBGary (and others) planned as “willing to propose,” rather than, as the emails show, “did propose?”

We shall see what the status of the proposals were when the Chamber bought off on its free pilot with these security companies.

But once again, the Chamber does not deny that it was working with HBGary to spy on anti-Chamber activists.

Egyptian Trash Talk

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Hi there denizens of this strange blog. I am a spooky hacker (No como se Adrian Lamo) and have determined there is far too much negativity in the common daily activities here. I protest. Like an Egyptian. Time to accentuate the positive and eliminate the negative. So here is a little music with which to celebrate what can be accomplished by the youth of a country when they are engaged, mad as hell and not going to take it any more.

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For years, we have been trying to figure out what it will take to wake up the American government, Congress, powers that be and get them to return to the ethos of what this country – the United States – is supposed to stand for and exemplify. Instead of watching Obamaco Organizing For America and Move On lamely and pathetically try to suck up and pray the youth will come out and vote for centrist, status quo, Bush-Lite bullshit in 2012, maybe we should be telling and encouraging the youth to figure out where the American version of Tahrir Square is and helping them get there. It is the least we can do. Seriously.

Our generation has borne the climate change deniers, Tea Party, evolution deniers, Andrew Breitbart and Fox News horse manure and propounded freaking Barak Obama as the hopey-changey salvation. In short, we are totally fucked. Turn the gig over to our kids and get out of the way. If Egypt has proven anything which can be taken home here, it is that we need to be talkin bout a new generation. We are done and have screwed the pooch big time; it is up to them, but we can help them and “prepare the battlefield”.

Okay. Here is the legal disclaimer. There is no way in hell I was going to post the fucking Bangles, even though I kind of like Walk Like An Egyptian. Not gonna do it. So, Live at Pompeii may not quite be Egyptian, but close enough for rock and roll. By the way, I think Suleiman is Pink.

Palantir Tries to Preserve Their Government Contracts

In a post I’ll write some day, I will show how the WikiLeaks cables show that every time a partner government threatens to use the high tech intelligence toys we share with it–notably our telecommunication wiretapping–to spy on domestic opponents, the Obama Administration makes a very concerted effort to disavow such efforts (if not end the partnership).

Which is why I find it so interesting that the CEO of Palantir Technologies just apologized to Glenn Greenwald for (I guess) allowing HBGary to target him for an oppo research and attack on his credibility.

“As the Co-Founder and CEO of Palantir Technologies, I have directed the company to sever any and all contacts with HB Gary,” the statement starts.

Dr. Karp explains that Palantir Technologies provides a software analytic platform for the analysis of data. They do not provide – “nor do we have any plans to develop” – offensive cyber capabilities.

In addition, the statement says that Palantir does not build software that is designed to allow private sector entities to obtain non-public information, engage in so-called cyber attacks, or take other offensive measures.

“I have made clear in no uncertain terms that Palantir Technologies will not be involved in such activities. Moreover, we as a company, and I as an individual, always have been deeply involved in supporting progressive values and causes. We plan to continue these efforts in the future,” Dr. Karp added.

“The right to free speech and the right to privacy are critical to a flourishing democracy. From its inception, Palantir Technologies has supported these ideals and demonstrated a commitment to building software that protects privacy and civil liberties. Furthermore, personally and on behalf of the entire company, I want to publicly apologize to progressive organizations in general, and Mr. Greenwald in particular, for any involvement that we may have had in these matters.”

Somehow,Dr. Karp forgot to apologize to Brad Friedman, another journalist WBGary–in projects bid in partnership with Palantir–has targeted.

As a reminder, Palantir Technologies is one of the two other security firms that HBGary partnered with to try to get spying business with Bank of America and the Chamber of Commerce.

But perhaps more relevant is Palantir’s primary focus: working with the national security apparatus. They’ve done at least $6,378,332 in business with entities like SOCOM and FBI in the last several years. And while they say they have no plans to adopt “offensive cyber capabilities,” that’s not to say they’re not helping the government analyze data on our presumed enemies.

I would imagine Palantir has pretty good reason to know that the government will not do business with a contractor using the same technologies to target Glenn Greenwald (and maybe Brad Friedman).

At least not publicly. Remember–DOJ recommended Hunton & Williams (which put Palantir and HBGary together for the bid) to Bank of America.

Security Firms Pitching Bank of America on WikiLeaks Response Proposed Targeting Glenn Greenwald

On Saturday, private security firm HBGary Federal bragged to the FT that it had discovered who key members of the hacking group Anonymous are. In response, Anonymous hacked HB Gary Federal and got 44,000 of their emails and made them publicly available.

You believe that you can sell the information you’ve found to the FBI? False. Now, why is this one false? We’ve seen your internal documents, all of them, and do you know what we did? We laughed. Most of the information you’ve “extracted” is publicly available via our IRC networks. The personal details of Anonymous “members” you think you’ve acquired are, quite simply, nonsense.

So why can’t you sell this information to the FBI like you intended? Because we’re going to give it to them for free. Your gloriously fallacious work can be a wonder for all to scour, as will all of your private emails (more than 44,000 beauties for the public to enjoy). Now as you’re probably aware, Anonymous is quite serious when it comes to things like this, and usually we can elaborate gratuitously on our reasoning behind operations, but we will give you a simple explanation, because you seem like primitive people:

You have blindly charged into the Anonymous hive, a hive from which you’ve tried to steal honey. Did you think the bees would not defend it? Well here we are. You’ve angered the hive, and now you are being stung.

As TechHerald reports, among those documents was a presentation, “The Wikileaks Threat,” put together by three data intelligence firms for Bank of America in December. As part of it, they put together what they claimed was a list of important contributors to WikiLeaks. They suggested that Glenn Greenwald’s support was key to WikiLeaks’ ongoing survival.

The proposal starts with an overview of WikiLeaks, including some history and employee statistics. From there it moves into a profile of Julian Assange and an organizational chart. The chart lists several people, including volunteers and actual staff.

One of those listed as a volunteer, Salon.com columnist, Glenn Greenwald, was singled out by the proposal. Greenwald, previously a constitutional law and civil rights litigator in New York, has been a vocal supporter of Bradley Manning, who is alleged to have given diplomatic cables and other government information to WikiLeaks. He has yet to be charged in the matter.

Greenwald became a household name in December when he reported on the “inhumane conditions” of Bradley Manning’s confinement at the Marine brig in Quantico, Virginia. Since that report, Greenwald has reported on WikiLeaks and Manning several times.

“Glenn was critical in the Amazon to OVH transition,” the proposal says, referencing the hosting switch WikiLeaks was forced to make after political pressure caused Amazon to drop their domain.

As TechHerald notes, an earlier version of the slide said support from people like Glenn needed to be “attacked.”

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.

Our Diplomats Need to Spend More Time Surfing the Toobz!

As I noted in my last post, DiFi is accusing the intelligence community of having missed the potential volatility of Middle Eastern unrest because they’ve been paying too little attention to social media.

So I decided to check the WikiLeaks State cables to see whether DiFi’s complaint bears out.

Obviously, this is a totally insufficient test. Not only is State not the primary member of the intelligence community that should be tracking these things, we have no idea how representative the cables are of all State communication. (Though there are obviously intelligence community members working under official cover at the Embassy, and one would hope a good deal of our specialists on any particular country’s dialects are stationed in that country.) Nevertheless, it gives an idea of how attentively our Embassies track opposition viewpoints expressed in social media, and how they view social media as a source of information.

And DiFi may well be right.

There are just 14 WikiLeak cables in this database mentioning both Egypt and bloggers (out of 325 that mention Egypt) but just one–dated March 30, 2009–that talks in detail about the actual content of blogs rather than Mubarak’s persecution of them as a human rights issue. (This cable notes that bloggers and other journalists cover torture complaints and a few others refer to specific types of bloggers being persecuted.) The March 30 cable assesses,

KEY POINTS —

(C) Egypt’s bloggers are playing an increasingly important role in broadening the scope of acceptable political and social discourse, and self-expression. —

(C) Bloggers’ discussions of sensitive issues, such as sexual harassment, sectarian tension and the military, represent a significant change from five years ago, and have influenced society and the media. —

(C) The role of bloggers as a cohesive activist movement has largely disappeared, due to a more restrictive political climate, GOE counter-measures, and tensions among bloggers. —

(C) However, individual bloggers have continued to work to expose problems such as police brutality and corporate malfeasance.

[snip]

(C) Egypt has an estimated 160,000 bloggers who write in Arabic, and sometimes in English, about a wide variety of topics, from social life to politics to literature. One can view posts ranging from videos of alleged police brutality (ref B), to comments about the GOE’s foreign policy, to complaints about separate lines for men and women in government offices distributing drivers’ licenses. One NGO contact estimated for us that a solid majority of bloggers are between 20 and 35 years old, and that about 30 percent of blogs focus on politics. Blogs have spread throughout the population to become vehicles for a wide range of activists, students, journalists and ordinary citizens to express their views on almost any issue they choose. As such, the blogs have significantly broadened the range of topics that Egyptians are able to discuss publicly.

It’s not clear whether anyone at the Embassy made an independent assessment of the blogs themselves; the cable is heavily reliant on the viewpoints of at least three different sources, as well as the comments of “two young upper middle-class bloggers” and one female political blogger not identified demographically.

Meanwhile, just 5 cables mention both Facebook and Egypt (two cables appear in both searches). Two of these cables simply count the growing number of Mohamed el Baradei Facebook fans. One of them–an April 16, 2008 cable titled, “Mahalla Riots: Isolated Incident or Tip of an Iceberg?” and reviewing the April 6, 2008 events–probably should have alerted US authorities to track Facebook more closely.

(C) April 6 brought together disparate opposition forces together with numerous non-activist Egyptians, with the Facebook calls for a strike attracting 70,000 people on-line, and garnering widespread national attention. The nexus of the upper and middle-class Facebook users, and their poorer counterparts in the factories of Mahalla, craeated a new dynamic. One senior insider mused, “Who could have imagined that a few kids on the internet could foment a buzz that the entire country noticed? I wish we could do that in the National Democratic Party.”

Though the reference to the “senior insider” complaining that Egypt’s NDP couldn’t foment as much buzz as “a few kids on the internet” suggests the assessment of the importance of Facebook to the movement may have come from Egyptians, not from any analysis conducted in the Embassy itself.

Just as tellingly, most of the 7 cables on Egypt and April 6 are among those that discuss social media (that is, State knew or should have known that social media was an important tool for the April 6 movement).

Meanwhile, it’s even worse for Tunisia. Just one cable (out of 81) mentions Tunisia and either blogger or Facebook–and that’s a report on the Embassy’s own use of Facebook!

At least in the case of Egypt, the Embassy had both warning that Mubarak’s government considers bloggers enough of a threat to persecute, as well as some sense that social media has served an organizing function.

Yet even with that warning, Embassy staffers don’t appear to have spent much time learning from social media.

“Did Anyone Know a Fruit Vendor in Tunisia Was Going to Light Himself on Fire?”

That’s the question NSC spokesperson Tommy Vietor used yesterday to deflect Senate Intelligence Committee concerns that the Administration was taken by surprise by the events in Egypt.

Did anyone in the world know in advance that a fruit vendor in Tunisia was going to light himself on fire and start a revolution? No. But for decades, the intelligence community and diplomats have been reporting on unrest in the region that was a result of economic, demographic and political conditions.

That’s pretty much the answer Stephanie O’Sullivan gave to the committee as they grilled her yesterday (though without the snide reference to Mohamed Bouazizi, the Tunisian whose self-immolation sparked the uprising there).

“We warned of instability,” said Stephanie O’Sullivan, who has been nominated to become the nation’s No. 2 intelligence official. The hearing was on her nomination to be principal deputy director of the Office of Director of National Intelligence. But, she added, “we didn’t know what the triggering mechanism would be.”

It’s also what Paul Pillar told Spencer about warnings of the Egyptian uprising.

“The ingredients of upheaval were there for a long time,” says Paul Pillar, who was the intelligence community’s top Mideast analyst from 2000 to 2005, “but it was impossible to predict in advance what particular catalyzing events would set stuff off.”

But that response doesn’t address three issues.

First, there’s DiFi’s complaint that the intelligence community was not monitoring open source resources to track the Egyptian opposition.

Feinstein set a skeptical tone at the opening of the hearing, saying Obama and other policymakers deserved timely intelligence on major world events. Referring to Egypt, she said, “I have doubts whether the intelligence community lived up to its obligations in this area.”

After the hearing, Feinstein said she was particularly concerned that the CIA and other agencies had ignored open-source intelligence on the protests, a reference to posts on Facebook and other publicly accessible Web sites used by organizers of the protests against the Mubarak government.

Speaking more broadly about intelligence on turmoil in the Middle East, Feinstein said, “I’ve looked at some intelligence in this area.” She described it as “lacking . . . on collection.”

Our intelligence community makes a great deal of effort to track the public internet communications of Islamic extremists. But DiFi suggests they’re not doing the same to track potential sources of instability around the world. In my next post, I’ll show that she may have a point.

In addition, the response that the intelligence community can’t predict when a fruit vendor will self-immolate and with it light up the whole Middle East ignores a point that Pillar admitted.

At the same time, the CIA is really, really close to its Egyptian counterparts. It relied on Egypt’s spymaster, now Mubarak’s vice president, to carry out a torture program against terrorist suspects. But Pillar denies that closeness led the CIA to rely on rosy pictures of a stable country provided by Egypt’s spies.“They take with grain of salt what [Egyptian spies] have to say,” Pillar says. “Anybody in the State Department or intelligence community following a country like Egypt is highly conscious of that as an occupational hazard. That doesn’t mean necessarily that they have great sources inside an opposition movement, but they’re aware of this as a potential shortcoming.” [my emphasis]

Pillar admits that we didn’t necessarily have great sources within the opposition movement. And he may be suggesting that that is because of our particularly close ties to Egypt’s intelligence services and thugs like Omar Suleiman. Particularly if DiFi’s complaint about not tracking social media is correct, that’s sort of going to make it hard to predict a revolution.

Finally (and this is a point as salient for the complaining Senators as for the intelligence community), what if we did know people were talking about a revolution? What would we have done?

Given the Administration’s caution about dispensing of its ally Mubarak (something I’m not terribly surprised about), what do the Senators really think we would have done, as a country, had we thought Mubarak’s rule was unstable? Egypt has been such a cornerstone of our foreign policy for so long, I highly doubt it would have changed our policy of gently trying to nudge Mubarak to reform without trying to offend him.

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