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Chelsea Manning Wonders Whether She Could Have Gotten Anwar al-Awlaki’s Treatment

In accepting the Sam Adams prize, Chelsea Manning raised the ACLU/NYT lawsuits for the OLC memo authorizing the killing of Anwar al-Awlaki. (h/t Kevin Gosztola)

In doing so, she borrows an argument about separation of power and secrecy Judge Colleen McMahon made in her opinion on the FOIA.

Here’s McMahon:

As they gathered to draft a Constitution for their newly liberated country, the Founders – fresh from a war of independence from the rule of a King they styled a tyrant- were fearful of concentrating power in the hands of any single person or institution, and  most particularly in the executive. That concern was described by James Madison in Federalist No. 47 (1788):

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny ….

The magistrate in whom the whole executive power resides cannot of himself … administer justice in person, though he has the appointment of those who do administer it.

[snip]

The Framers — who were themselves susceptible to being hanged as traitors by the King of England during the Revolutionary War — were as leery of accusations of treason as they were of concentrating power in the hands of a single person or institution. As a result, the Constitution accords special protections to those accused of the most heinous of capital crimes; Article 3, Sec. 3 sets the procedural safeguard that, “No Person shall be convicted of treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

Interestingly, the Treason Clause appears in the Article of the Constitution concerning the Judiciary — not in Article 2, which defines the powers of the Executive Branch. This suggests that the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive. As no less a constitutional authority than Justice Antonin Scalia noted, in his dissenting opinion in Hamdi, 542 U.S. at 554, “Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.”

Here’s Manning:

The founders of America – fresh from a war of independence from King George lll – were particularly fearful of concentrating power. James Madison wrote that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”(1)

[snip]

When drafting Article III of the American Constitution, the founders were rather leery of accusations of treason, and accorded special protections for those accused of such a capital offense, providing that “[n]o person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

For those of you familiar with the American Constitution, you may notice that this provision is under the Article concerning the Judiciary, Article III, and not the Legislative or Executive Articles, I and II respectively. And, historically, when the American government accuses an American of such crimes, it has prosecuted them in a federal criminal court.

After having repeated McMahon’s lesson on the checks our Founders gave Article III courts over the President, Manning described how frustrated McMahon was in not being able to release the OLC memo to ACLU and NYT.

In a recent Freedom of Information Act case(2) – a seemingly Orwellian “newspeak” name for a statute that actually exempts categories of documents from release to the public – a federal district court judge ruled against the New York Times and the American Civil Liberties Union. The Times and the ACLU argued that documents regarding the practice of “targeted killing” of American citizens, such as the radical Sunni cleric Anwar Nasser al-Aulaqi were in the public’s interest and were being withheld improperly.

The government first refused to acknowledge the existence of the documents, but later argued that their release could harm national security and were therefore exempt from disclosure. The court, however, felt constrained by the law and “conclud[ed] that the Government [had] not violated the FOIA by refusing to turn over the documents sought in the FOIA requests, and [could not] be compelled . . . to explain in detail the reasons why [the Government’s] actions do not violate the Constitution and laws of the United States.”

However, the judge also wrote candidly about her frustration with her sense that the request “implicate[d] serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States,” and that the Presidential “Administration ha[d] engaged in public discussion of the legality of targeted killing, even of [American] citizens, but in cryptic and imprecise ways.” In other words, it wasn’t that she didn’t think that the public didn’t have a right to know – it was that she didn’t feel that she had the “legal” authority to compel disclosure.

Against that background, Manning notes that she was charged with treasonable offense, and wonders whether under the Awlaki precedent she could have been drone killed, just like Awlaki.

I was accused by the Executive branch, and particularly the Department of Defense, of aiding the enemy – a treasonable offense covered under Article III of the Constitution.
Granted, I received due process. I received charges, was arraigned before a military judge for trial, and eventually acquitted. But, the al-Aulaqi case raises a fundamental question: did the American government, and particularly the same President and Department, have the power to unilaterally determine my guilt of such an offense, and execute me at the will of the pilot of an Unmanned Aerial Vehicle?

She then compares (I think, though the timing on this is perhaps understandably murky) the release of both the OLC memo and follow-up speeches — and its revelation of the powers claimed by the President — with her own releases.

Until documents held by the U.S. Department of Justice’s Office of Legal Counsel were released after significant political pressure in mid-2013, I could not tell you. And, very likely, I do not believe I could speak intelligently of the Administration’s policy on “targeted killing” today either.

There is a problem with this level of secrecy, obfuscation, and classification or protective marking, in that they supposedly protect citizens of their nation; yet, it also breeds a unilateralism that the founders feared, and deliberately tried to prevent when drafting the American Constitution. Now, we have a “disposition matrix,” classified military commissions, and foreign intelligence and surveillance courts – modern Star Chamber equivalents.

I am now accepting this award, through my friend, former school peer, and former small business partner, Aaron, for the release of a video and documents that “sparked a worldwide dialogue about the importance of government accountability for human rights abuses,” it is becoming increasingly clear to me that the dangers of withholding documents, legal interpretations, and court jurisprudence from the public that pertain to the right to “life, liberty, and property” of a state’s citizens is as fundamental and important to protecting against such human rights abuses.

Of course, we still don’t know what happened to Anwar al-Awlaki; the White Paper leaves many of the key details obscure. Even as the government prepares to execute another of its citizens.

But in comparing her own releases with the government’s refusal to reveal precisely how they decided to execute an American with no due process, Manning points to where this has already gone.

And she makes a compelling case that the government’s claims of secrecy cannot be trusted.

Between Two Ends of the WikiLeaks Investigation: Parallel Constructing the FBI’s Secret Authorities

Two pieces of news on the government’s investigation of WikIleaks came out yesterday.

At the Intercept, Glenn Greenwald reported:

  • In 2010, a “Manhunting Timeline” described efforts to get another country to prosecute what it called the “rogue” website
  • In a targeting scenario dating to July 25, 2011, the US’ Targeting and General Counsel personnel responded to a question about targeting WikiLeaks’ or Pirate Bay’s server by saying they’d have to get back to the questioner
  • In 2012, GCHQ monitored WikiLeaks — including its US readers — to demonstrate the power of its ANTICRISIS GIRL initiative

Screen Shot 2014-02-19 at 9.42.54 AM
Also yesterday, Alexa O’Brien reported (and contextualized with links back to her earlier extensive reporting):

  • The grand jury investigation of WikiLeaks started at least as early as September 23, 2010
  • On January 4, 2011 (21 days after the December 14, 201 administrative subpoena for Twitter records on Appelbaum and others), DOJ requested Jacob Appelbaum’s Gmail records
  • On April 15, 2011, DOJ requested Jacob Appelbaum’s Sonic records

Now, as O’Brien lays out in her post, at various times during the investigation of WikiLeaks, it has been called a Computer Fraud and Abuse investigation, an Espionage investigation, and a terrorism investigation.

Which raises the question why, long after DOJ had deemed the WikiLeaks case a national security case that under either the terrorism or Espionage designation would grant them authority to use tools like National Security Letters, they were still using subpoenas that were getting challenged and noticed to Appelbaum? Why, if they were conducting an investigation that afforded them all the gagged orders they might want, were they issuing subpoenas that ultimately got challenged and exposed?

Before you answer “parallel construction,” lets reconsider something I’ve been mulling since the very first Edward Snowden disclosure: the secret authority DOJ and FBI (and potentially other agencies) used to investigate not just WikiLeaks, but also WikiLeaks’ supporters.

Back in June 2011, EPIC FOIAed DOJ and FBI (but not NSA) for records relating to the government’s investigation of WikiLeaks supporters.

EPIC’s FOIA asked for information designed to expose whether innocent readers and supporters of WikiLeaks had been swept up in the investigation. It asked for:

  1. All records regarding any individuals targeted for surveillance for support for or interest in WikiLeaks;
  2. All records regarding lists of names of individuals who have demonstrated support for or interest in WikiLeaks;
  3. All records of any agency communications with Internet and social media companies including, but not limited to Facebook and Google, regarding lists of individuals who have demonstrated, through advocacy or other means, support for or interest in WikiLeaks; and
  4. All records of any agency communications with financial services companies including, but not limited to Visa, MasterCard, and PayPal, regarding lists of individuals who have demonstrated, through monetary donations or other means, support or interest in WikiLeaks. [my emphasis]

In their motion for summary judgment last February, DOJ said a lot of interesting things about the records-but-not-lists they might or might not have and generally subsumed the entire request under an ongoing investigation FOIA exemption.

Most interesting, however, is in also claiming that some statute prevented them from turning these records over to EPIC, they refused to identify the statute they might have been using to investigate WikiLeaks’ supporters.

All three units at DOJ — as reflected in declarations from FBI’s David Hardy, National Security Division’s Mark Bradley, and Criminal Division’s John Cunningham – claimed the files at issue were protected by statute.

None named the statute in question. All three included some version of this statement, explaining they could only name the statute in their classified declarations.

The FBI has determined that an Exemption 3 statute applies and protects responsive information from the pending investigative files from disclosure. However, to disclose which statute or further discuss its application publicly would undermine interests protected by Exemption 7(A), as well as by the withholding statute. I have further discussed this exemption in my in camera, ex parte declaration, which is being submitted to the Court simultaneously with this declaration

In fact, it appears the only reason that Cunningham submitted a sealed declaration was to explain his Exemption 3 invocation.

And then, as if DOJ didn’t trust the Court to keep sealed declarations secret, it added this plaintive request in the motion itself.

Defendants respectfully request that the Court not identify the Exemption 3 statute(s) at issue, or reveal any of the other information provided in Defendants’ ex parte and in camera submissions.

DOJ refuses to reveal precisely what EPIC seems to be seeking: what kind of secret laws it is using to investigate innocent supporters of WikiLeaks.

Invoking a statutory exemption but refusing to identify the statute was, as far as I’ve been able to learn, unprecedented in FOIA litigation.

The case is still languishing at the DC District.

I suggested at the time that the statute in question was likely Section 215; I suspected at the time they refused to identify Section 215 because they didn’t want to reveal what Edward Snowden revealed for them four months later: that the government uses Section 215 for bulk collection.

While they may well have used Section 215 (particularly to collect records, if they did collect them, from Visa, MasterCard, and PayPal — but note FBI, not NSA, would have wielded the Section 215 orders in that case), they couldn’t have used the NSA phone dragnet to identify supporters unless they got the FISC to approve WikiLeaks as an associate of al Qaeda (update: Or got someone at NSA’s OGC to claim there were reasons to believe WikiLeaks was associated with al Qaeda). They could, however, have used Section 215 to create their own little mini WikiLeaks dragnet.

Read more

The Cayman Islands Agrees to Share Tax Data with the Five Eyes Countries

Screen shot 2013-11-29 at 5.18.17 PMApparently, the people at Treasury don’t need to take advantage of the Black Friday sales. Instead, they’re at work and announcing that the Cayman Islands (and Costa Rica) will share information on US taxpayers with the IRS. The move comes after the Brits rolled out a similar agreement earlier this month.

I assume we’ll see other advanced countries demand similar agreements. But for the moment, just the NSA and GCHQ’s home countries will be able to learn which of their citizens are stashing money in one of the world’s most important tax havens (and one that has been important to Anglo-American financial dominance).

There are two submarine cables serving the Cayman Islands. One — Maya 1 — carries telecom traffic to Hollywood, FL. It is owned, in part, by NSA spy partners AT&T and Verizon. The other carries traffic to Jamaica. Another of the cables that serves Jamaica lands in Boca Raton. A third carries traffic to British Virgin Islands. From BVI, cables carry traffic directly to several other landing spots in the US, as well as — by way of Bermuda — Canada.

Earlier this year, someone leaked massive amounts of data on BVI’s tax shelter clients and habits (though curiously, no US persons were identified among the most prominent culprits). As far as I know, no one has ever discovered how that data got leaked, and there seems little concern from the powers that be about this leaker who, after all, was as audacious as Chelsea Manning or Edward Snowden.

Now, I’m not saying that the US and UK were already stealing Cayman Islands’ data. I’m only saying that doing so would be perfectly within the known practices of America and Britain’s spy agencies.

The Institutional Subjectivity of the White Affluent US Nation

In a really worthy read, Bill Keller and Glenn Greenwald debate the future of journalism.

Sadly, however, in his first response to Keller’s self-delusion of belonging to the journalistic tradition of “newspapers that put a premium on aggressive but impartial reporting[] that expect reporters and editors to keep their opinions to themselves,” Greenwald seemed to cede that such journalism constitutes, “concealing one’s subjective perspectives.” That permitted Keller to continue his self-delusion that his journalism — at both the level of reporter and that reporter’s larger institution — achieved that silence about opinions until they started fighting about the role of national allegiance and national security.

That argument developed this way.

Greenwald: Former Bush D.O.J. lawyer Jack Goldsmith in 2011 praised what he called “the patriotism of the American press,” meaning their allegiance to protecting the interests and policies of the U.S. government. That may (or may not) be a noble thing to do, but it most definitely is not objective: it is quite subjective and classically “activist.”

[snip]

Keller: If Jack Goldsmith, the former Bush administration lawyer, had praised the American press for, in your words, “their allegiance to protecting the interests and policies of the U.S. government” then I would strongly disagree with him. We have published many stories that challenged the policies and professed interests of the government. But that’s not quite what Goldsmith says. He says that The Times and other major news outlets give serious consideration to arguments that publishing something will endanger national security — that is, might get someone killed.

For what it’s worth, I think Keller is clinging to the first thing Goldsmith said,

Glenn Greenwald complained that “the NYT knew about Davis’ work for the CIA (and Blackwater) but concealed it because the U.S. Government told it to” (my emphasis).  That is inaccurate.  The government asked the Times not to publish, as it often does, and the Times agreed to the request, which it sometimes does.  The final decision rested with the Times, which listens to the government’s claims about national security harm and risk to individual lives, and then makes its own decision.   The Timesdoes not, in my opinion, always exercise this discretion wisely.

And ignoring what Goldsmith went on to say,

I interviewed a dozen or so senior American national security journalists to get a sense of when and why they do or don’t publish national security secrets.  They gave me different answers, but they all agreed that they tried to avoid publishing information that harms U.S. national security with no corresponding public benefit. Some of them expressly ascribed this attitude to “patriotism” or “jingoism” or to being American citizens or working for American publications.   This sense of attachment to country is what leads the American press to worry about the implications for U.S. national security of publication, to seek the government’s input, to weigh these implications in the balance, and sometimes to self-censor.  (This is a natural and prudent attitude in a nation with the fewest legal restrictions in the world on the publication of national security secrets, but one abhorred by critics like Greewald.)  The Guardian, al Jazeera, and Wikileaks, by contrast, worry much less, if at all, about U.S. national security interests.

That is, Goldsmith noted both that at an institutional level US news outlets entertained the requests of the government, and that at a reportorial level, individuals prioritized US “national security.”

And from there, Keller repeatedly ignored or dismissed the efforts Greenwald, in his Edward Snowden reporting, or WikiLeaks, in its Cablegate publications, made to protect lives of individuals.

It’s not until Greenwald’s response where he gets to the crux of the issue.

As for taking into account dangers posed to innocent life before publishing: nobody disputes that journalists should do this. But I don’t give added weight to the lives of innocent Americans as compared to the lives of innocent non-Americans, nor would I feel any special fealty to the U.S. government as opposed to other governments when deciding what to publish. Read more

The Spooks Will Never Have Their Software Self-Spying Working

Mark Hosenball seems to have gotten as obsessed with the Intelligence Community’s inability or unwillingness to implement the automated Insider Threat tracking software mandated by Congress (see here and here). After reporting last week that the Hawaii NAS location where Edward Snowden worked didn’t have insider threat detection software installed because of bandwidth problems, he reported earlier this week that DOD will miss the new Congressionally mandated deadlines to have it working, again partly for bandwidth reasons.

But the intelligence agencies have already missed an October 1 deadline for having the software fully in use, and are warning of further delays.

Officials responsible for tightening data security say insider threat-detection software, which logs events such as unusually large downloads of material or attempts at unauthorized access, is expensive to adopt.

It also takes up considerable computing and communications bandwidth, degrading the performance of systems on which it is installed, they said.

[snip]

The latest law requires the agencies to have the new security measures’ basic “initial operating capability” installed by this month and to have the systems fully operational by October 1, 2014.

But U.S. officials acknowledged it was unlikely agencies would be able to meet even that deadline, and Congress would likely have to extend it further. One official said intelligence agencies had already asked Congress to extend the deadline beyond October 2014 but that legislators had so far refused.

If the Intelligence Committees were unable to get the IC to take this mandate seriously after the Chelsea Manning leaks, I don’t see any reason they’ll show more focus on doing so after Edward Snowden. They seem either unable to back off their spying bandwidth draw far enough to implement the security to avoid another giant leak, or unwilling to subject their workers (or themselves?) to this kind of scrutiny.

This is why I made the Ozymandias joke the other day. Parallel with our headlong rush toward destruction via climate change, the IC doesn’t seem able to reverse the manic demand for more data long enough to protect the collection systems they’ve got, or at least the mission critical ones. That is not a sign of an organization that can survive long.