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Sun Jun 09, 2013 at 11:28 PM PDT

Aristotle on Domestic Surveillance

by decora

From Aristotle's "Politics", book 5 part 11, circa 350 BC, a selection chosen by the White Rose Society for their 3rd anti-nazi leaflet, translation by Benjamin Jowett, MIT Classics Archive.

"A tyrant should also endeavor to know what each of his subjects says or does, and should employ spies, like the detectives at Syracuse, and the eavesdroppers whom Hiero was in the habit of sending to any place of resort or meeting; for the fear of informers prevents people from speaking their minds, and if they do, they are more easily found out. "
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Discuss

Dear Reader: This article has been stopped half-way to completion by writers block, sitting in 'drafts' for over a month. To properly write about these topics, one must be somewhat detached,, i have been unable to acheive this state of consciousness lately on these matters. But I also feel like I can't let this article just sit in 'drafts' forever. So here it is. Please realize there might be errors and take this with grains of salt. Sorry for bad citations, ranting,  etc.


In the Espionage Act case against Dr. Stephen Jin-Woo Kim, judge Colleen Kottar-Kotelly has cited two cases from the World War I Red Scare era that she claims involved the Espionage Act of 1917: Frohwerk v United States and Wimmer v United States. She was attempting to show that some of Mr Kim's arguments in favor of Free Speech, and against the Espionage Act, have already been rejected by the court, 90 years ago, and so, today, should also be rejected.

The problem is that neither Frohwerk's nor Wimmer's cases involved the Espionage Act of 1917. They actually involved the Sedition Act of 1918, which was an amendment to the Espionage Act of 1917, which was repealed in 1921 because it was too draconian. The 1918 act actually made it illegal to criticize the government and it's war effort during World War I. Socialist Eugene Debs was thrown in prison under this act for criticizing the war in a speech; he later ran for president from inside his prison cell. Thousands and thousands of other people were arrested in the same period during the Palmer Raids, and several hundred, including Emma Goldman, were deported by a brand new FBI manager named J. Edgar Hoover. [20]

And yet. Here in 2011, our federal judge, Colleen Kottar-Kotelly, doesn't appear to realize this. Now, I am not a lawyer. I'm not even what you would call smart. But it seems like common sense to me that judges should not cite laws that were repealed. Especially not if the case involves sending someone to federal prison for 10 years. Especially especially not if it involves the fundamental principles of civilization, like the freedom of speech and the constitutional safeguards against tyrrany.


Just so you can see what exact alleged crime we are talking about here, let's quote the actual news story that got the CIA so pissed off that it prompted Mr Obama's Department of Justice to accuse Mr Kim of Espionage against the state. According to Scott Shane of the New York Times, it was probably this June 2009 article by James Rosen entitled "NK's Post UN Sanctions Plans, Revealed" June 11, 2009:

"What's more, Pyongyang's next nuclear detonation is but one of four planned actions the Central Intelligence Agency has learned, through sources inside North Korea, that the regime of Kim Jong-Il intends to take" [15]

That's it. Ten years in prison for Dr. Kim, if convicted. Accused enemy of the state. For that. A single telephone conversation with a reporter, that gave him the information to write that snippet of an article. For whom did James Rosen write this article? Fox News. It is somewhat ironic that Fox, home of many opinionated commentators who decry Bradley Manning, the New York Times, and other "leakers", continues to host this material on it's website, continues to employ Mr Rosen, and apparently has not self immolated. After all, if Bradley Manning is charged under the Espionage for allegedly giving the Collateral Murder video to Wikileaks, and some Wikileaks people (the Cambridge Associates)  might be charged with Espionage Conspiracy for helping him, then why can't Fox News be charged for the same thing? They are taking the alleged leaks of Stephen Kim and publishing them. Was Collateral Murder more 'revealing' than this Fox News story? Or is it simply yet-another-gunship video like the ones at http://www.apacheclips.com ?

Curiouser: Fox News even tried to restrict the amount of leak it published, in Mr. Rosen's story:

"FOX News is withholding some details about the sources and methods by which American intelligence agencies learned of the North's plans so as to avoid compromising sensitive overseas operations"

I'm guessing some people in the CIA and DOJ did not feel Fox News was vigorous enough in it's censorship here. Massive face palm for the pro-state anti-leakers at Fox.

The really strange thing is that Stephen Kim only started talking to reporters so much, because his bosses at the State Department told him to.[19] That's right. The CIA didn't like what the State Department was doing, so it went to the DOJ, and Obama's people said "OK CIA, you win, we will set this State Department guy up for a 10 year bid." What about Dr. Kim's decades of service to the nation? What about his brilliant contributions to the study of one of the most dangerous countries on the planet, North Korea? What about his rights as a citizen; what about his rights as a human being? Throw all those under the bus - - the CIA wanted something done, and Obama's DOJ was apparently there to listen and obey.


What were Kim's lawyers arguing exactly, that judge Kottar-Kotelly objected to? Their argument was partly based on the arguments of the founding fathers on the necessity of taking care when accusing people of Treason. Kim's lawyers asked us to consider, for example, John  Adams, who said

"The men who framed the instruments remembered the crimes that had been perpetrated under the pretense of justice; for the most part they had been traitors themselves, and having risked their necks under the law they feared despotism and arbitrary power more than they feared treason." [0]

Kim's lawyer, Abbe Lowell, also quotes Thomas Jefferson:

"Treason. . . when real, merits the highest punishment. But most codes extend their definitions of treason to acts not really against ones country. They do not distinguish between acts against the government, and acts against the oppressions of the government; the latter are virtues; yet they have furnished more victims to the executioner than the former; because real treasons are rare; oppressions frequent."[0]

Kim's defense argued, if I my interpretation is correct, that Congress intended Treason, which is in the Constitution, to be the main law under which spies and traitors could be prosecuted, and that such prosecutions should be limited only to severe crimes against the security of the country, not anything else. They had all had awful experiences with the British empire and its Monarchical fanatacism with crushing dissent by bloody and violent means. The Espionage Act, therefore, must be carefully considered against the founder's intentions.

Kim's defense argues that by using the Espionage Act against him for such a trivial communication with a reporter, the government is essentially violating the fundamental spirit of the Constitution. In other words, the Espionage Act is unconstitutional. Dr. Kim was passing along a tiny, relatively innocuous piece of information, that has almost 0 chance of harming the security of the nation. It is something that officials do every day - something, in fact, that Obama's own staff did for Bob Woodward so that he could write favorable things about them in his book, "Obama's War". Or, as others have argued, as Obama's staff did when leaking details about the raid on Bin Ladin, so that Obama would look strong and powerful and leaderly. Using the Espionage Act to go after Kim thus makes the Espionage Act into a de-facto way for the government to imprison people arbitrarily based on their speech, something that is against the principles of civilization.

Judge Colleen Kollar-Kotelly was not having any of this.[16] She rejected all of this reasoning and refused to dismiss the Espionage Act count against Kim. She based her decision partly on several old Espionage Act cases, including US v Cramer, from WWII (Nazi sabotage), and US v. Drummond, from the cold war (selling secrets to the Soviets). In both of those cases, the courts specifically said that the Espionage Act was constitutional.

But Kollar-Kotelly did not stop there. She cited two cases from the original era of the Espionage Act; back in 1917, around the time of World War I and the First Red Scare. This is where Frohwerk and Wimmer come in. [16]

Why did she choose those two cases to cite? Because the lawyers in those made the same argument Kim is making; the Constitution, by establishing Treason as a very specific and limited crime, gives guidance to any users of laws such as the Espionage Act.

This is not simply a matter of a slight clerical error by Judge Kottar-Kotelly. This is taking a law that hasn't existed for 90 years, and using it on a modern case. This is also taking a law that is massively anti-free-speech, during war times, back when wars were things that were declared, and had definite beginnings and endings. That law, if it existed today, would make large swaths of public debate, both from the 'right' and the 'left', illegal - it would furthermore always be in force, since in modern times, wars have no definite beginnings or endings, but seem to propagate from one generation to the next, without end.


This becomes more clear if one examines the details of the two cases that Judge Kottar-Kotelly cites; Frohwerk and Wimmer. What, in fact, were they about?

Frohwerk's crime was to put into print the following:

"The first begins by declaring it a monumental and inexcusable mistake to send our soldiers to France, says that it comes no doubt from the great trusts, and later that it appears to be outright murder without serving anything practical; speaks of the unconquerable spirit and undiminished strength of the German nation, and characterizes its own discourse as words of warning to the American people. Then comes a letter from one of the counsel who argued here, stating that the present force is a part of the regular army raised illegally; a matter discussed at length in his voluminous brief, on the ground that before its decision to the contrary the Solicitor General misled this Court as to the law. Later, on August 3, came discussion of the causes of the war, laying it to the administration and saying 'that a few men and corporations might amass unprecedented fortunes we sold our honor, our very soul' with the usual repetition that we went to war to protect the loans of Wall Street. Later, after more similar discourse, comes 'We say therefore, cease firing."[1][2]
"the paper goes on to give a picture, made as moving as the writer was able to make it, of the sufferings of a drafted man, of his then recognizing that his country is not in danger and that he is being sent to a foreign land to fight in a cause that neither he nor any one else knows anything of, and reaching the conviction that this is but a war to protect some rich men's money."[1][2]

Does that clip sound like anyone you know? Does it resemble something you yourself have written? Even some of our conservative friends have objected to Obama's disregard of the War Powers Act in Libya. What about Wimmer's case? He said the following:

"America did not have a chance to win this war; that President Wilson started the war to protect the Wall Street brokers, who had purchased English and French securities; that President Wilson was a friend of the rich man"[3]

Again. How long would it take you to find something like that on Daily Kos? Should people who say this sort of thing go to jail?

Kottar-Kotelly does not simply cite the cases either; she goes into an extended quote by Supreme Court Justice Oliver Wendell Holmes in support of her assertions. The hard thing to understand here is that Oliver Wendell Holmes would later change his mind on the Sedition Act, and start criticizing it partly because of his reading an essay entitled "Freed Speech in Wartime", by legal scholar Zechariah Chafee.

Chafee's arguments went back to English Law, and the right of the people to be free to criticize their government; the notion that the government is the 'peoples servant' makes obsolete the old notions of "slandering the King". Those monarchical slander laws had historically been used not to prevent lies about the King, but to persecute the King's legitimate critics. [17]

Holmes expressed his change of heart in the Abrams v US case, saying:

". . . when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 (Act July 14, 1798, c. 73, 1 Stat. 596), by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants [250 U.S. 616, 631] making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.' Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

Oliver Wendell Holmes wrote this in 1919 --- after his house had been bombed by anarchists earlier in the year. In fact, this bombing was one of a string of bombings of national leaders in 1919, one in which the hands of a woman were blown off. [17] People talk about the 'ticking time bomb'. Well, back in 1919 they had actual shrapnel, and Justice Holmes still stood up for the First Amendment. What would he think of Kottar-Cotelly's using him against free speech in a case like Stephen Kim's, all these years later? What if we could bring him back and ask him?

Modern government prosecutors of Espionage Act cases seem to keep running up against this intractable problem: the Constitution of the United States of America was created by people upset with a tyrannical government for it's use of national security law to destroy dissent and free speech. For most of the history of the United States, there has been no 'Espionage' law, and certainly not one that would criminalize a single conversation about somewhat unsurprising facts, that had no immediate or apparent effect on the security of the nation.

Only through the muscle and influence of the CIA was the case of Kim ever brought to trial. Just as in the Thomas Drake case, only the pressure of an intelligence agency  caused the Department of Justice to spend it's resources and it's people in trying to prosecute him. It is almost as though the Intelligence Community is now directing the actions of our police force, to attack people who talk with journalists as though they are enemies of the state. There are very few periods in American history when this sort of pattern has found any traction, and those periods are typically frowned upon by most people in hindsight. We can include, for example, the aforementioned Palmer Raids, but could also discuss the Red Channels era, the Hollywood Blacklist, etc etc.


The other non-spy Espionage Act cases besides Kim are Thomas Drake, Jeffrey Sterling, Shamai Leibowitz, and of course, Bradley Manning. More cases are waiting in the wings; the "Cambridge Associates" involved in the Wikileaks case are under a Grand Jury investigation under the Espionage Act. Every book or article you have ever read that used phrases like "an unnamed source" or "senior officials" may never have been written, if these prosecutions had existed in the past and been successfull. We would not know about Abu Grahib, or Guantanamo Bay, or CIA's secret "Black Sites", because people like Jane Mayer wouldn't have been able to find sources willing to talk to her - everyone would be too afraid of being put in prison.

There is a reason people make Slippery Slope arguments. Slopes really are slippery. As the years go by, all of the legal precedents set in terrorism cases are being turned around and used against ordinary American citiziens for things like whistleblowing or talking to reporters. Thomas Drake's case is a good example; the prosecution cited numerous terrorism cases in it's support of it's wholly unprecedent actions against him, like the use of the Silent Witness Rule. In Kim's case, Kottar-Kotelly has already cited the 1993 World Trade Center bombing case of Omar Rahman to bolster her arguments against Kim's defense.

Here we have well educated, intelligence, experienced judges who are making mistakes with the basic facts of the Espionage laws. Judge Kollar-Kotelly is relying on legal principles under which people like Glenn Greenwald and Alyona Minkovski would be put in prison.

The Espionage Act cases are not just about the specific information that people gave reporters, nor are they just about specific people who are being persecuted by the government, nor are they just about any single administration or political party. They are about the right, in and of itself, to seek out the truth, and to discuss it with others. The fight for this right goes back a long way, from Aristarchus to Hypatia to Galileo to Sakharov to Ellsberg to Harry Wu. That is the real 'clash of civilizations' going on in the modern world - people who want to hide the truth, versus people who want to shout it from the rooftops. [9][13][21]

The Sedition Act of 1918, if it existed today, would outlaw freedom of speech. Occupy Wall Street & friends would not simply be arrested, get bail, and see charges dropped by the DA "in the interest of justice". Instead, they would get multi-year prison terms and branded "enemies of the state". Even some people from the Tea Party protests might find themselves in the same boat, especially the Ron Paul types who openly criticize the government's war policy.

Then there is the media. All of the talking heads that we love, and all of the talking heads that we love to hate, would be silent. There would be no more big arguments. Bill O'Reilly would be in prison - right behind Jon Stewart, next to Keith Olbermann, Rush Limbaugh, Rachel Maddow,  Sean Hannity, Cenk Uygur, Michael Moore, Neal Boortz, Glenn Greenwald, and just about any other pundit you can think of, who has ever criticized an act of the executive branch (and "in war time" has no meaning, because now we are always at perpetual war). Everything that makes America great, the noise, the screeching, the disagreement, the marches, the protests, the debates, the disagreement, even the simple talking and discussion, ... it would all wash away into one great, gray silence, disturbed only by the soft patterings of government approved propaganda.

It would be the death not only of our culture, but of the human race itself. As Carl Sagan might say, we might descend into a 'demon haunted world', where anyone who tried to question authority was suppressed as enemies of the state. That's what Espionage Law is. It's not just about passing secrets, it's about defining who is considered a "state enemy". And if everything is defined as a secret, then anyone can be declared as a state enemy. It has already happened to people like Thomas Drake, Shamai Leibowitz, Stephen Kim, and others. [22]

In a desert of information, where reporters can't find sources, and government employees can't tell anyone what the government is doing, only ignorance blossoms. As we grow ever more powerful in the weapons we build and the systems of social control we create, this 'combustible mix of ignorance and power' may allow a political or religious charlatans, as Sagan says, to take us over into the abyss, into tyranny, and possibly into a new world war, ending in planetary suicide.

References

[0] Motion to dismiss, Jan 2011, stephenkim.org

[1] Frohwerk v US summary, 1918, oyez.org

[2] Frohwerk v US, Supreme Court ruling, 1919, findlaw.com

[3] US v Peter Wimmer, 1920, Federal Reporter, Google Books

[4] Stephen Kim Legal Defense Trust

[5] Abrams v US, 1919, Oliver Wendell Holmes dissent, and the "market" of ideas.

[6] Dissent in the Supreme Court: a chronology By Percival E. Jackson, 1969, Google Books

[7] A Byte Out of History: The Palmer Raids, FBI.gov , 12/28/07

[8] Judge rejects motions to dismiss North Korea leak case, August 26, 2011, Josh Gerstein, politico.com

[9] Cosmos, Carl Sagan, Ann Druyan, Steven Soter, et al. 1980. hulu.com

[11] Abrams v US, Supreme Court decision, Oliver Wendell Holmes, Nov 1919

[12] The Supreme Court, PBS, Abrams v. United States (1919), on Holmes and Chaffee

[13] Rooftop Shouting: see Canary in the Coalmine by Jesselyn Radack for a modern experience of truth-repression

[14] Aristotle, The Politics.

[15] NK's Post UN Sanctions Plans, Revealed June 11, 2009, James Rosen, foxnews.com

[16] Memorandum Opinion and Order,, Aug 24 2011, Colleen Kottar-Kotelly, US District Court, District of Columbia, judge rejects Kim's arguments. via Politico.com

[17] Avrich, Paul, Sacco and Vanzetti: The Anarchist Background, Princeton University Press, 1991,  via Wikipedia 1919 United States anarchist bombings

[19] U.S. Pressing Its Crackdown Against Leaks By SCOTT SHANE, June 17, 2011, New York Times

[20] Any good book on Hoover, the Palmer Raids, etc.

[21] Andrei Sakharov (AIP.org) ,  Harry Wu (laogai.org), Ellsberg (CNN.com)

[22] For coverage of the modern Espionage Act cases see Jesselyn Radack's dailykos blog, Josh Gerstein's "Under the Radar" series at politico.com, Steven Aftergood's Secrecy News blog at the Federation of American Scientists, etc etc.

Discuss

If you have dived into some of CIA's problematic behavior in the War on Terror, you might remember hearing about a mysterious red headed female CIA agent who seems to be involved in several of the major intelligence screwups of the era, from torture, to double-agents blowing up CIA bases, to the CIA's decisions to prohibit the FBI from knowing about the Flight 77 hijackers al-Hazmi and al-Mihdhar having multiple-entry Visas to the US well before 9/11.

Jane Mayer described the mystery woman in her book, The Dark Side:

"After [Khalid Sheikh] Mohammed was captured, the woman, who headed the Al Qaeda unit in the CTC, was so excited she flew at government expense to the black site where Mohammed was held so that she could personally watch him being waterboarded. The CIA declined to discuss the matter, to make the officer available for comment, or to allow her to be named. . . . Coworkers described her, however, as the same hard-driving, redheaded former Soviet analyst who had been in the Bin Laden Unit during Michael Scheuer's supervision . . . word leaked out about her jaunt and superiors at the CIA scolded her for treating the painful interrogation as a show"

There are other press reports of the woman, for example the Associated Press article by Goldman and Apuzzo from 2011 that describes her causal role in the Khalid el-Masri case. This case would later became the infamous court case el-Masri v Tenet, in which judge T. S. Ellis III declared that state secrets privilege would not allow a German citizen falsely beaten, anally raped, and tortured by the CIA to sue the government.

What did the Red Headed Woman have to do with the hijackers al-Hazmi and al-Mihdhar? Before 9/11, inside the CIA's Bin Ladin unit (Alec Station) there were two FBI agents named Mark Rossini and Doug Miller. The unit learned that two al-Qaeda figures, al-Hazmi and al-Mihdhar, who had visited the infamous Malaysian al-Qaeda meeting, had gotten US entry visas. When Rossini and Miller tried to alert FBI headquarters, the CIA refused to allow it. Rossini and Miller were prohibited from telling anyone that these two dangerous terrorists were headed for the United States. The CIA officer who told them "no" was referred to by Nowosielski and Duffy refer to as "Michael". In late 2000, The Red Headed Woman came to Alec Station, and was Michael's "direct supervisor". As the months ticked by, there was still no word between the 50 or so people at CIA who knew about al-Mihdhar and al-Hazmi, and the FBI headquarters, nor, according to Richard Clark, the Whitehouse. The hijackers moved around the US and eventually to American Airlines Flight 77, which crashed into the Pentagon on 9/11.


Ray Nowosielski and John Duffy are the indie journalists who have figured this out -  the true position of the Red Headed Woman in the history of the War on Terror, including 9/11. They are the ones that strung together the examples I have listed above. Their website is at http://www.secrecykills.com. These two men have been studying 9/11 for several years, including making a documentary 9/11: Press for Truth  in 2006. In an interview with Sibel Edmond's Boiling Frogs, they describe the lack of interest their work has gotten from the "main stream media".

Ray and John are trying to release a new documentary, entitled "Who is Rich Blee?". Ray and John claim to know the Red Headed Woman's real identity, using, apparently, "Savvy internet searches based on minimal background details" and interviews with various knowledgable people. They were planning to tell us her name with the release of their documentary. For now, they call her "Frances".

Of course, the CIA objected to the 'outing' of a working CIA agent, and threatened them with the Intelligence Identities Protection Act, something that Scooter Libby and Robert Novak were apparently unafraid of when they outed Valerie Plame, whose greatest crime was being married to a critic. Perhaps if Valerie Plame had been directly involved in some of the biggest intelligence failures of the War on Terror she would have been promoted up the ranks and be heading up a big operation in Obama's administration now. Because that's where Frances is. Right there in the upper sections of the org chart.

For now, Nowosielski and Duffy have held off on releasing Frances full identity, but if they discovered it with "savvy internet searches", and several other reporters know a lot about the agent already, then it doesn't seem likely that it will remain a public secret forever.

Discuss

Thu Sep 08, 2011 at 04:26 PM PDT

Hard Rock supporting racism?

by decora

Imagine there is a nation where the government has just decided to dis-enfranchise it's members who were former slaves. Not only are they ineligible to vote, they are ineligible to receive the state's free healthcare, and all of the other rights granted to full fledged citizens. Now imagine that a major corporation with a well-known, public brand, has a hand-in-glove relationship with the government of this nation, and profits from the relationship?

That nation is the Cherokee Nation, which is a sovereign political entity within the United States, mostly in the state of Oklahoma. The Hard Rock Hotel and Casino, Tulsa is actually owned and operated by the Cherokee Nation. The disenfranchisement of former slaves, known as Cherokee Freedmen, has occured because a recent amendment to the Cherokee constitution has finally wound it's way through the court system and is being enforced in the upcoming election for chief. Freedmen will be prohibited from voting. The Freedmen, formerly considered Cherokee citizens, will likely become 'non-citizens' for the forseeable future. DailyKos user jmbranum has written about the Freedmen before and so has cookiebear.

According to Rob Capriccioso of Indian Country Today, the US federal government, specifically the Department of Housing and Urban Development, has cut off certain funding to the Cherokee Nation until this issue is resolved to it's satisfaction. And Barney Frank, the US Senator, has even weighed in. On the other hand, defenders of the current Cherokee government have declared that this is a attack upon their Tribal Sovereignty by the US Government, and is an atttempt at the "termination of the tribe’s existence". From their viewpoint, the right to define who is in and who is out of the tribe is fundamental to it's sovereignty.

Hard Rock's website says their message is "Love all. Serve all." Does that include the descendants of the slaves of the Cherokee? Of course, it's more complicated than my little ranty blog post makes it sound; the Seminole Tribe of Florida actually owns the umbrella corporate brand of Hard Rock. But I digress.

See Also

HUD Denies Cherokee Funding Over Freedmen Issue, Rob Capriccioso, September 8, 2011, Indian Country Today Media Network

Discuss

In 2008, China underwent the poisoned baby milk scandal. There had been problems with the global food crisis of that year - the price of cattlefeed had skyrocketed, while prices payed to small farmers for agricultural products like milk had not. The "solution" to this problem was for various people in the supply chain to add melamine, a poison industrial chemical, into the product, in order to boost the measured protein content in the milk. This melamine wound up, eventually, in baby formula. Many babies died, and hundreds of thousands of others were sickened, often with kidney stone ailments and other serious problems.

One man, Zhao Lianhai, decided to do something. He had been an official in the Chinese food safety department. His own child had become ill from the tainted milk, and so he began to form a movement.

He created a website called 'Home for Kidney Stone Babies'. Other parents gathered there and exchanged advice and stories, and started to plan on ways to get redress from the government. He exposed corruption, such as posting allegedly leaked documents from a hospital that proved that officials were being pressured by the government to downplay the consequences of the scandal upon the health of infants. He organized meetings and protests with the other parents.

The government came down on him, hard. He was arrested and sentenced to several years in prison. His family members and his associates were harassed and persecuted by the state officials. His website was shut down.

After a great deal of pressure, the government let him go, after he agreed to some sort of false confession of his 'crimes'. After he was released, he recanted the confession, unable to bear the cognitive dissonance swirling around inside his head.


Now, in 2011, Chinese companies have been producing fake plastic rice, and selling it to poor people. The solution given by the government is to increase regulation. They claim that this will solve the problem.

It is baffling. They have the answer at their fingertips - their own population is wanting to participate in the regulation, like Zhao Lianhai, but instead they are persecuted. It is enough to make one agree with Alan Greenspan in his book Age of Turbulence. His argument went something like this: More regulation doesn't necessarily accomplish much. It allows corruption to become more 'legitimized' by the institutions that are supposed to be regulating it. Greenspan, instead, spoke of the importance of whistleblowers, from inside organizations, coming out and airing the injustices being perpetrated within organizations. Only then could regulators really go after wrongdoing.

This is a bit ironic and topsy-turvy, considering what Greenspan did to Brooksely Born at the Commodities Futures Trading Commission in the 1990s. She wanted to study whether we should make Credit Default Swaps and other credit derivatives more transparent and open to public scrutinty. Greenspan, Larry Summers, Arthur Levitt, and several others shouted her down and destroyed her government career. The Commodities Futures Modernization Act of 2000 passed, with her input being largely ignored.

Those Credit Default Swaps would later become the heart of the Synthetic CDO, which enabled trillions of dollars of subprime mortgage loans to be created for house flippers and cash-out refinances in the middle of the largest speculative financial bubble in recent memory. This led directly to the crash of 2008, the bank bailouts by the taxpayer, the Great Recession, the debt ceiling debate, the credit rating downgrade, etc etc etc.

So although Greenspan might believe in the principle of whistleblowing as an effective means of preventing wrongdoing, his own wrongdoing provides one of the best examples of why whistleblowers should be protected.


Again and again, we see the consequences of persecuting whistleblowers. It goes far beyond a simple violation of human rights, or a petty political squabble between two differing camps inside an organization. In the absence of whistleblowers, corruption becomes endemic, it becomes rampant. The ecosystem of the well run organization is overturned and destroyed, and replaced with incompetence and reckless decision making that goes forward unbothered by honest discussion or dissent.

This is how you have a country continue to churn out poisoned food, even with a massively, centralized police state that monitors the twitters of hundreds of millions of people, yet cannot monitor the products of it's own food factories, even after poisoning  hundreds of thousands of it's own children.

It is not a problem of regulation, China is one of the most regulated societies on the planet. It is a lack of human rights, the right to free speech, the right to petition the government, the right to criticize corporations and officials, and the right to blow the whistle.

Examples of similar incidents here in the United States are left as an exercise for the reader.

References

China’s poor treated to fake rice made from plastic: report By David Edwards Tuesday, February 8th, 2011, rawstory.com

Age of Turbulence, Alan Greenspan, 2008

A chinese dissident is freed, but he's still not free Simon Says by Scott Simon, npr.org, 2011 6 25

China milk scandal: Families of sick children fight to find out true scale of the problem, Malcom Moore, 3:56PM GMT 03 Dec 2008, The Telegraph (UK)

The 2008 China Milk Scandal and the Role of the Government in Corporate Governance in China, Jenny Fu, , Faculty of Law, University of Canberra, 2009.  from Corporate Law Teacher's Association  website (Australia)

A tweet costs Chinese activist year in jail, Bill Schiller, Nov 18 2010, Toronto Star.

Father of poisoned baby rallies parents in tainted-milk fight Jan 17 2009, Bill Schiller, Toronto Star

Discuss

Mon Aug 01, 2011 at 07:21 PM PDT

whistleblowing and the national debt

by decora

If you read through the books on the financial crisis, it becomes clear that there were a large number of whistleblowers, both in private companies and in the government, who were ignored, silenced, intimidated, threatened, fired, and otherwise attacked for speaking the truth about the massive financial frauds at the heart of the bubble in 2000-2008. Brooksley Born could be considered an example of such a whistleblower.

Born was in charge of the Commodities Futures Trading Commission. She wanted to investigate the brand newly-created financial innovations in the 'over the counter derivative' markets of the 1990s. Think of Trading Places, with Eddie Murray and Dan Aykroyd - the Duke brothers committed fraud on the Frozen Orange Juice market by trying to steal a crop report, stealing massive amounts of money from everyone else in the process. Similar things could happen in any futures market, including the brand new 'credit derivatives' markets coming into bloom at JP Morgan and other innovative banks of the day. But people like Bob Rubin, Larry Summers, Alan Greenspan (ironically betitled "The Committee to Save the World" by Time Magazine circa the turn of the century) and others shut down Brooksley Born before she could even start a project to ask questions. The classic documentary on this is the PBS Frontline episode entitled "The Warning" (which you can watch online). Born was hounded out of government after being screamed at over the phone by regulatory-captured officials.

Another interesting example is the hedge fund manager Bill Ackman, who was attempting to tell anyone who would listen that the gigantic 'monoline' insurance companies were built on shaky ground. What shaky ground? The same sorts of credit derivatives that Greespan, Summers, Rubin, et al, had stopped Brooksley Born from examining in the 1990s. MBIA, AMBAC, and other 'monolines' were like miniature AIGs, writing quasi-insurance products called Credit Default Swaps against bundles of financial mystery-meat named Synthetic CDOs. They were kanoodling hand in glove with the New York State Insurance officials and the Ratings Agencies (like S&P and Moody's) to make it legal. What happened to Ackman? The SEC threatened to sue him for attempting to gamble that these companies would fail. So the companies continued to survive; every time they wrote an 'insurance' contract it enabled thousands and thousands of unneeded mortgages to be produced by the banks. Mortgages for the poor to have housing? No. Most bubble-mortgages were for house flippers and 'cash-out refinancers' - people who used their theoretical home equity (their 'paper wealth') like an ATM machine (see McLean and Nocera, "All The Devils Are Here"). This activity, largely based on speculation and fraud, drove housing prices to unnatural highs and led to mass migration from places like California where ordinary people could no longer afford to live. By 2009, the monoline insurers were all dead, AIG was bailed out by taxpayers, and Bill Ackman was doing allright because he got money when they crashed. But things could have gone very differently for him - he could have gone to prison. His story is told in Confidence Game by Christine S Richard.

Was Ackman a whistleblower? It is a good question. I can imagine Yves Smith of nakedcapitalism.com excoriating him for profiting from collapse, as she did of the three main groups in Michael Lewis' book The Big Short. But once the SEC threatens to sue you simply for pointing out facts, then don't you sort of fall into that whistleblower category, no matter the other features of your biography? And how many other people like Ackman were out there, but they decided to keep quiet instead of telling their story?

The Bernard Madoff story is similarly baffling, with whistleblower Harry Markopolos protesting on numerous, numerous occasions to the SEC about the fraud that Madoff was perpetrating. But Madoff's fraud of a measly tens-of-billions is basically dwarfed by the credit derivatives markets (the Credit Default Swaps and the Synthetic CDOs), and the list of his victims is dwarfed by the list of victims of those markets (you. your entire family. almost every person on the planet).

You can also throw in Freddie and Fannie with this lot. I do not know of the specific whistleblower in these cases, but if you read All the Devils are Here by Bethany McLean and Joe Nocera (McClean noted for her earlier work with Peter Elkind on "The Smartest Guys in the Room" about Enron) you will find out what happened to people who opposed Fannie and Freddie in congress. They got 'cut off at the knees', a literal phrase used by high executives at one of the two "Government Sponsored Entities". If anyone opposed Fannie and Freddie, their character was assassinated and they were run out of Washington on a rail.

But why pick on Fannie and Freddie? The big banks, including Bear Stearns, Goldman Sachs, Lehman Brothers, Deutsche Bank, and others were doing similar things, churning out trillions of dollars of worthless mortgages for house flippers and cash-out refinancers, based on the fantasy that housing prices always increase. And on top of that mountain of fraud, they built even more fraud, the Credit Default Swaps (essentially, gambling), and Synthetic CDOs (gambling on gambling), and then sold it to investors like pension funds and 401k plans and school fund managers. And inside some of those banks, there were quasi-whistleblowers too. Lehman Brothers had several excellent 'risk managers' on its staff, until they got fired because they refused to drink the real-estate kool-aid circa 2006. This is described in A Colossal Failure of Common Sense by Lawrence McDonald and Pat Robinson, Uncontrolled Risk by Mark Williams, Devil's Casino by Vicky Ward, and others. At Merrill Lynch, Stan O'Neal fired everyone who dared to question his authority, as he drove Merrill over the CDO cliff in 2006-2007, as described in by Greg Farrell in Crash of the Titans and elsewhere. And on and on and on.

That is just the tip of the iceberg of the financial crisis. There are literally dozens of examples I don't know about or have forgotten to mention. When these big banks and other financial groups were too big to fail, the national debt buoyed them up. The great back of the taxpayer carried them along, creaking and groaning under their weight. Dozens of alphabetic acronyms were created at the Federal Reserve to mask and hide where all the money went, but it could never mask the vast quantities that were poured directly from the public to keep the financial infrastructure of the planet from disappering in a puff of smoke. But that Great Recession iceberg is just one of the many icebergs floating in the national debt sea.

Take Thomas Drake's case, which Jesselyn Radack just wrote about. He, and others, including his ally Diane Roark in Congress, exposed a billion dollar boondoggle, the NSA Trailblazer project. His story has gotten a good deal of publicity for his exposure of illegal activities at NSA - he felt it was "making the Nixon administration look like pikers" (as quoted in Jane Mayer's article "The Secret Sharer", in the New Yorker of June 2011). But the other side of it, as he mentioned in his Ridenhour Prize speech, is that he felt "we were accountable for spending American taxpayer monies wisely". He has even called NSA the "Enron of the US intelligence community" according to Shaun Waterman in the Washington Times.

Trailblazer was part of our new National Security Industrial Complex, to modernize president Eisenhower's "Military Industrial Complex". Lest we forget Ike's warning, here it is, copied from Humanities and Social Sciences Online:

Until the latest of our world conflicts, the United States had no armaments industry. American makers of plowshares could, with time and as required, make swords as well. But now we can no longer risk emergency improvisation of national defense; we have been compelled to create a permanent armaments industry of vast proportions. Added to this, three and a half million men and women are directly engaged in the defense establishment. We annually spend on military security more than the net income of all United States corporations.

This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence -- economic, political, even spiritual -- is felt in every city, every State house, every office of the Federal government. We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications. Our toil, resources and livelihood are all involved; so is the very structure of our society.

In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

And that was not the only occasion on which Eisenhower spoke about the pervasive money wasting possibilities within such a system. Here is his "Cross of Iron" speech, from Information Clearing House:

Every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed.

This world in arms in not spending money alone.

It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children.

The cost of one modern heavy bomber is this: a modern brick school in more than 30 cities.

It is two electric power plants, each serving a town of 60,000 population.

It is two fine, fully equipped hospitals.

It is some 50 miles of concrete highway.

We pay for a single fighter with a half million bushels of wheat.

We pay for a single destroyer with new homes that could have housed more than 8,000 people.

This, I repeat, is the best way of life to be found on the road the world has been taking.

This is not a way of life at all, in any true sense. Under the cloud of threatening war, it is humanity hanging from a cross of iron.

Could we, today, replace the concept of "heavy bomber" with the "fusion center" or "fighter" with "TSA VIPR team"? Are we now "humanity hanging from a backscatter X-ray machine"?

The project that Thomas Drake exposed, the Trailblazer Project, actually had almost no useful output. For all of that money poured into it, the taxpayers received almost no benefit. It was basically vaporware. All of the privacy violations are now probably being committed by 'twisted' versions of a different project ("twisted" being the word of choice of NSA Mathematician Bill Binney, again from Jane Mayer's New Yorker article). Now multiply Drake's case by a thousand, or ten thousand - the NSA is not the only government agency that throws taxpayer money down the toilet. There are numerous stories of contractors in Iraq and Afghanistan making mass sums of money with little or no accountability. No-bid contracts arranged with companies with close ties to the executive branch. Money disappearing down holes never to be seen again, spent for uncertain purposes on unknown quantities. Bunny Greenhouse won what Joe Davidson at the Washington Post calls a 'bitter sweet' victory for exposing some of this.

How many other Thomas Drakes and Bunny Greenhouses are out there? How many have I forgotten to mention? How many do we not even know about? How many tried to blow the whistle, but were threatened and intimdated into silence? How many took plea bargains, sliently, or simply agreed to resign, quietly, rather than risk a public trial and imprisonment? How many have now watched what happened to these two and others, and are keeping mum about what is going on in all of the thousands of government bureaucracies? To disclose the waste of taxpayer money, you have to disclose government information - and if the government can decide any information it produces is secret, then it becomes a crime to object to your own money being wasted.

Even Alan Greenspan, in his book Age of Turbulence, says that most real frauds and financial crimes are brought to the attention of the authorities and the public by whistleblowers, not by government regulators trying to examine institutions from the outside. In other words, despite his actively destroying the careers of potential whistleblowers like Brooksley Born, even he recognized that whistleblowing is one of the engines of a productive economy and a free society.

Discuss

Mon Jul 18, 2011 at 12:15 PM PDT

hacking is not a crime

by decora

(apology for the slop writing, im just exhausted and no strength to edit it properly)

Hacking is not a crime. invasion of privacy is a crime. harassment is a crime. intentional infliction of emotional distress is a crime. the journalists of the News of the World were not hackers - they were invaders of privacy, and tresspassers upon the dignity of others, harassers, and thieves. they may have used hacking tools. but they were not hackers.

the subconscious public fear of the 'hacker archetype' is the same meme that is hurting the causes of the wikileaks people and bradley manning.

in fact, quite a number of the counts against Manning are for violating an 'anti-hacker law' - a law passed with the aid of public fear and ignorance about what hacking actually is. The Computer Fraud and Abuse Act - the same law that Thomas Drake (NSA Whistleblower) plead guilty to, is one of the laws Manning is charged with for disclosing the 2007 July Baghdad video - which is allegedly became the Collateral Murder video. Nevermind that you can go find hundreds of equivalent videos all over youtube, or even on a website dedicated to them: Apache Clips.com. Because of 'anti hacker' laws, somehow Manning winds up in trouble over allegedly giving it out to someone 'not entitled' to receive it.

But there is a much more questionable charge against Manning under the CFAA. It is the Reykjavic 13 cable. This cable has nothing whatsoever to do with the troops, the wars in Afghanistan and Iraq, the military, national defense, intelligence activities, or anything else covered by the ordinary espionage laws. But since the "anti hacker law", specifically CFAA 18 USC 1030 (a)(1), includes the word "foreign relations" , they can charge him with a major crime for allegedly releasing this state department cable. What was actually in the cable? Information about the scandal surrounding the corrupt and fraudulent privatized Icelandic banks, and what happened when they went bust. When people scream about the evils of hacking, this is the sort of 'anti-hacking' law they are helping to support - laws that make it a serious crime to release government documents about fraud and abuse of power.

The "anti hacker law" CFAA is also probably what the US government will use against any 'hacking journalists' that committed acts in the US - however that doesnt mean that this law is a good idea. There are other laws that can be used - invasion of privacy laws. Harassement laws. Laws that attack what the journalists did, not the means by which they did it.  

"hacking" doesn't even have a definition. its sort of like that word 'leaking'. everyone thinks they know what it means, but they dont. everyone thinks its illegal, but its not, nor should it be.

the vague terms thrown around when people try to discuss this actually hurt people. 'hacking' can be applied to everything from taking your own video game console apart, to making your own robots, to opening your own car door when you lose your key.... but then they try to lump in this stuff with it, like making someone think their dead kid is still alive. thats not hacking, thats evil.

one of the first 'hacker' cases was the E911 document. the phone companies and the police tried to portray the actions of a few hackers who took this document as evil criminals bent on destroying the 911 emergency system. they said it cost hundreds of thousands of dollars of damage to the phone system. it turned out, in fact, that anyone could order the E911 document from a catalog for something like 10 dollars. it was not super secret and although the hackers tresspassed a computer system to get it, tresspassing is not worthy of decades in prison or hundreds of thousands of dollars in damages.

Another case was that of Steve Jackson games. They didn't even make electronic products, they just made a role-playing-game about hackers. That didn't stop the police from raiding them, taking their equipment, and nearly destroying their company though. Incidents like these were behind the foundation of the Electronic Frontier Foundation - a foundation which would later help expose AT&Ts complicit cooperation with the NSA's illegal wiretapping of American citizens. The EFF, the "pro hacker group" in the language of a lazy journalism, has produced copious amounts of information about the questionable electronic activities of the government, from Fusion Centers to the No Fly list.

Another interesting early 'hacking' incident involved two guys named Steven Jobs and Steven Wozniak, who, before they got rich building and selling Apple Computers, actually engaged in selling something called 'blue boxes'. A Blue Box is nothing more than phone-system hacking tool - but one made for the purpose of making free telephone calls (i.e. stealing), not for spying on people. And yet, the same 'anti-hacking laws' and 'hackers are evil meme' continues, even as Job's announcements about the Apple iPhone and iPad have become as newsworthy as presidential proclamations.

Hacking is also called 'tinkering'. Its also the foundation of practically every invention and the basis of modern technology. The realization of the idea that mere individuals should be able to have computers, like the one you are using right now, began in the 1970s with hobbyists and experimenters - you know, hackers. The world wide web, which broke computer communications out of the old company-owned boxes like  Prodigy and Compuserve, was created by hackers. The software that this DailyKos website runs on was created by hackers.

'Hacking' should not be a crime in any civilized soceity, because civilized societies need to have very specific legal codes in order to have a fair and just legal system. Vague laws are frequently unjust laws, because they give the executive the power to place itself above the law. The subconscious public fear of certain symbols and archetypes (hacker, leaker) do nothing to promote the cause of justice or the rule of law.

Lastly, the Computer Fraud and Abuse Act has become almost a backdoor expansion of the Espionage act. Not only does part of it (subparagraph a 1) borrow much of the same language as the Espionage Act, and broaden it to apply to more people and more types of information, but various parts of the act have also been used in several of the Obama administration's Espionage cases - including the Wikileaks case, the Manning case, and the Drake case.  Essentially it outlaws the transfer of information - with little regard for what sort of information it is, or the circumstances surrounding the disclosure. This is the de-facto result of the law in an age where almost all communication happens over computers. This is something anathema to a democratic society.

It is no coincidence that when they couldn't get Thomas Drake on any other charge, they got him with 'exceeding access to a computer to take information from the United States'. Think about that charge - would they have ever been able to pass a law about "exceeding the authorized use of a pencil and paper to take information from the united states"? Or "opening a file cabinet improperly to take information from the united states"? The only reason these laws can make it through Congress is because of the negative cultural stereotype of the 'hacker' - something that is fading with time, where ordinary people now routinely try to illegally download movies and music off the internet, but something that is not fading fast enough.

Did I mention that, thanks to the Patriot Act, parts of the CFAA now lump in 'hacker' defendants with terrorists and mafia bosses? It is like a perfect storm of irrational fear - a new McCarthy era. Hackers, leakers, new versions of 'red' and 'fellow traveler', applied in our new age liberally to whistleblowers and legitimate criticisms of the government.

What did Manning allegedly do? He allegedly released hundreds of thousands of secret government documents. Now personally I think it was reckless and dangerous. But the case is bigger than that. The case is about the laws he is actually charged with breaking, and what it will mean for the future. He is charged with 34 different counts of violating various laws, many of them 'anti-hacking' laws. What would be the precedent if he was convicted on all those counts? First it would be the Wikileaks conspiracy counts against the people in Cambridge would be strengthened. If they get convicted too, then it would mean that anyone who downloaded videos or documents about possible government malfeasance or fraud may now be considered 'hackers' - and thrown in with the 'terrorists' and 'leakers' and 'criminals'. That is the real threat of our misuse of language and imprecise vocabulary.

References

EFF-  Hepting v AT&T

Manning's charge sheets

Cybercrime: An Overview of the Federal Computer Fraud and Abuse Statute and Related Federal Criminal Laws, Charles Doyle, CRS from Federation of American Scientists' website

Wozniak, S. G.; Smith, G. (2006), iWoz: From Computer Geek to Cult Icon: How I Invented the Personal Computer, Co-Founded Apple, and Had Fun Doing It, New York: W. W. Norton & Company, ISBN 0393061434. page 115 (via google books)

Computer Fraud and Abuse Act Title 18 USC 1030 , from Cornell Law

Espionage Act Title 18 USC 793, from Cornell Law

Inside Job (film), Charles Ferguson et al. Contains info about the Icelandic banking scandal and it's relationship to  corrupt academics and government officials.

Charges for Soldier Accused of Leak, By STEVEN LEE MYERS, New York Times: July 6, 2010 (links to Manning & Reykjavic 13 cable content)

Reykjavic 13 cable text (easy to use link, no torrent)

FBI serves Grand Jury subpoena likely relating to WikiLeaks BY GLENN GREENWALD WEDNESDAY, APR 27, 2011 13:28 ET  (includes copy of subpoena, referncing the Computer Fraud and Abuse Act)

US v. Thomas Drake: Selected Case Files, Federation of American Scientists website. Steven Aftergood et al.


Discuss

There is an interesting tidbit of information in this new New York Times article, by Scott Shane, on Dr. Stephen Jin-Woo Kim, who has been charged with Espionage for having a telephone conversation with a reporter.

Stephen Kim was ordered to do the very act that the government is now claiming is Espionage. The State Department ordered him to talk about North Korea with the media. Now the government is charging him with Espionage for talking about North Korea with the media. Compare this with the Drake case: as part of Drake's job, he was told to retain files regarding an OIG investigation. Then he was charged with Espionage for retaining the files that he had just been told to retain.

Kafka.

The New York Times story is very interesting - it is one of the few news reports focusing on Kim's case so far. However, the Times has apparently forgotten the lessons of the Dr. Wen Ho Lee Espionage Act case in 1999. Lee later won a large lawsuit against the government and several newspapers for their gross mistreatment of him. The Times is, now, 12 years later, again giving too much credence to the government and failing to be sufficiently skeptical. For example, the article says that "Kim lied to the FBI". Actually we don't know that. All we know is that the government criminally charged Kim with lying to the FBI. People lambasted President Obama when he said Bradley Manning "broke the law", but here the New York Times has done the same thing to Stephen Kim.

Thomas Drake was criminally charged with lying to the FBI too. Drake got all 4 'lying' charges against him dropped, and the judge wrote that one of the things he was accused of lying about, well, he didn't even do it, and there was no evidence that he did it.

When the government charges someone with 'lying to the FBI', what it can actually mean, sometimes, is that the FBI tricked someone, kept them in a room for several hours, with multiple agents interviewing them, got them confused and tired and scared, and then pounced on a mis-statement or slight discrepancy in wording and then claimed that some tiny mistake was a 'lie'. If you don't believe me, please view the youtube video "Never talk to the police", in which both a Law professor, James Duane, of Regent Law School, and Officer George Bruch, of the Virginia Beach PD, will explain how the system works, and why we have a Fifth Amendment right to remain silent.

Sometimes the government bends the bounds of propriety in their accusations of 'lying', and they use it as a sort of "psychological strategy" against the defendant, working on both the defendant's own emotional state and the media portrayal of the alleged offenses. That is what they did in the Lee case and the Drake case. It maye have happened in the Kim case too. If so, then the New York Times is playing right into the trap. This is not what a reader should expect from the media - the media is supposed to challenge the government's claims, not repeat the government's statements uncritically. Did Kim lie? Maybe. Maybe not. It is not for the New York Times to decide. But I digress.

According to Shane's story, the CIA apparently decided that Kim got his information from a 'TOP SECRET' classified report, thus somehow making the tidbit of information in his telephone conversation also 'TOP SECRET'. However, the concept of "Classified Top Secret" is not the standard used in an Espionage Act case (except for the almost-never-used section 798). As judge T.S. Ellis III pointed out in the resentencing hearing of Larry Franklin in 2009, and as many others have pointed out elsewhere, the relevant standard in the Espionage Act is "national defense information", not "classified information". Furthermore, only the court, i.e. the jury, can decide if something is 'national defense information' or not.

The definition of "national defense information" has evolved over the years, but it basically refers to a much smaller set of information than the term "classified". Congress has, actually, repeatedly refused and/or failed to change the info-secrecy laws, like the Espionage Act, to blanketly criminalize the disclosure of all information in the 'classified' category. Part of the reason is that Congress likes (as does the President) to give out secret information in order to fight it's political battles in the media. This tradition goes back to the founding fathers, before the invention of the concept of 'classified' itself.

The New York times does not mention any of this. The fact that some report is stamped TOP SECRET, and then Kim talked about one tiny piece of information inside of the report, does not, by itself, mean he broke any law, let alone the Espionage Act. Many of the supposedly super-important documents in the Drake case were also supposedly TOP SECRET. When the government dropped all charges against him, it made the importantce of the SECRET claims about his documents a little suspect. Especially considering that one of them was actually de-classified shortly after his indictment, and another had been marked UNCLASSIFIED in big, bold letters.

Like Drake, Dr. Kim has refused to plea bargain. He believes he is innocent. If you look at all the top secret information that continually streams out of Congress and the Whitehouse (the leaks regarding the Bin Ladin raid perhaps being the most egregious in recent memory), the case is questionable. Why did they indict Kim, and not one of the hundreds, if not thousands of other government employees who do the same thing all the time? Kim's defense has pointed out that the highly  sensitive information in Bob Woodward's book, "Obama's War", could only have come from the highest levels of the administration. Should those sources be charged under the Espionage Act as well?

With the Kim case, the State Department told him to do what he did. He was following orders. If I were on the jury, how, exactly, would I feel about that? About putting a man in jail for 10 years for doing what he was told to do? How would I feel, considering that in my own job, I have personally experienced having one boss get mad at me for doing what another boss told me to do, and that several other people were doing too? Which party am I going to have sympathy with here, the defense or the prosecution?

There is one detail about Kim's case IMHO that makes it a bit problematic for Kim's defenders, though. From Shane's article:

On June 11, 2009, Mr. Rosen reported that “the Central Intelligence Agency has learned, through sources inside North Korea,” that Pyongyang was likely to respond to a United Nations resolution condemning its nuclear and missile tests with more tests and other measures. The news was no surprise.

I suppose, theoretically, that this information could have alerted the North Koreans that we have sources inside North Korea. But Shane's "no surprise" follower implies that perhaps this was not a huge deal - perhaps they already knew it? Considering all the information the administration revealed about the sources in the Bin Ladin raid, such a disclosure is apparently not unprecedented. In the language of the Espionage Act, the question might come down to this - did Kim have "reason to believe" this information could harm the US or help a foreign nation?  

What is going on in this case? Is Dr. Kim a pawn, perhaps like Mr. Drake, in some sort of political fight between the powerful forces of government? In Kim's case, is it the CIA versus the State Department?

References

U.S. Pressing Its Crackdown Against Leaks, Scott Shane, New York Times, Jun 17 2011

The Protection of Classified Information: The Legal Framework, Jennifer K. Elsea ,Legislative Attorney , January 10, 2011 , from Federation of American Scientists (FAS.org)

stephenkim.org, Stephen Kim Legal Defense Trust

Don't talk to the police, youtube,  uploaded by user "russr", June 2008. with Professor James Duane, Regent Law, and Officer George Bruch, Virginia Beach PD

Larry Franklin resentencing hearing, Judge T.S. Ellis III, 2009, US District Court, Eastern Virginia / Alexandria, from Federation of American Scientists (FAS.org)

The Espionage Statutes and Publication of Defense Information by Harold Edgar and Benno C. Schmidt, Columbia Law Review, May 1973, from Federation of American Scientists (FAS.org)

US v. Thomas Drake, Selected Case Files, from Federation of American Scientists (FAS.org)

The Trial, Franz Kafka, 1925. from Project Gutenburg

Leaks Through History, John Woestendiek, Baltimore Sun (Oct. 14, 2003), via History News Network (hnn.us)

In Politics, Leaking Stories Is a Fine Art, by Richard T. Cooper and Faye Fiore, Los Angeles Times, April 9, 2006

Building Our Own “Iron Curtain”: The Emergence of Secrecy in American Government Timothy L. Ericson, Society of American Archivists, 2004/2005

Jesselyn Radack's DailyKos blog
 

Poll

If you got in trouble from one boss for doing what the other boss said to do

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Discuss

Tom Blanton of the National Security Archives recently wrote the following:

"If you are circulating petitions, please do not use generalities like “the Obama administration. . . . The main reason for the increase in leaks prosecutions is that cases developed under the Bush administration “ripened” last year and this year, and the career prosecutors (abetted by one or two Obama appointees) dared the White House to intervene and risk the Nixon-era opprobrium for “political interference in prosecutions.”. "1

I do not understand this. Dates regarding the recent Espionage Act cases are as follows:

Stephen Jin-Woo Kim: Alleged disclosure: 2009. Indicted: 2010. 3

Shamai Leibowitz: Alleged disclosure: 2009. Convicted: 2009. 4,5

Cambridge Wikileaks person(s): Alleged disclosure: 2009 / 2010. Grand Jury meeting: 2011.6

Bradley Manning: Alleged disclosure: 2009. UCMJ Article 32 hearing: 2011.7

Thomas Drake: Alleged retention: 2006. William Welch put on case: 2009. Indicted: 2010. 8

Jeffrey Sterling: Alleged disclosure: 2003. Senior Litigation Counsel: William Welch. Indicted: 2010.9

Welch's subpoena of journalist James Risen, which will possibly lead to his imprisonment: 2011 10

William Welch is on these cases because of Lanny Breuer, whom Obama nominated in January 200917. The story of Mr. Welch would seem to indicate that the administration does, in fact, have some influence here.

William Welch left his position in the Public Integrity section of the Department of Justice after allegations of misconduct in October 2009. 11, 12 Why? According to Stephanie Berry at Masslive.com:

The judge chastised lawyers throughout the trial for withholding evidence from defense lawyers. More recently, officials discovered critical notes memorializing the government's star witness contradicting earlier testimony that were never turned over. 18

Mr. Breuer, Obama's Appointee, apparently did not share the judge's opinion. Mike Scarcella quoted him in the LegalTimes blog:

'Breuer called Welch an "extremely smart and thoughtful lawyer. I think he's a dedicated public servant who's devoted his entire professional life to serving the American people."'13

Mr. Welch was then allowed to take a position in the Department of Justice's Criminal Division. 12, 19 Shane Harris of the Washingtonian wrote, when Welch was appointed to the Sterling and Drake cases,

To go after Risen, Drake, and other loose-lipped antagonists, the administration has chosen a crack prosecutor.12

Mr. Welch acted in the Drake case similarly to how the prosecutors acted in the Stevens Case. For example: one document the government charged Drake with 'retaining' was actually marked "UNCLASSIFIED". Welch's team withheld this fact from the defense for 10 months. 26, 27

It was Holder that decided to drop the Stevens case, according to Carrie Johnson's Washington Post article on the subject19. If Holder had the power to drop the case, could he have at least asked that Mr. Welch stop pushing the bounds of legal propriety in his future cases? Furthermore, did Mr. Holder have no say on what tasks would be assigned to Mr. Welch in his subsequent career? Could he not have asked Mr. Breuer to, rather than assign Mr. Welch to prosecute people who give information to the media, instead assign him to prosecute mortgage fraud, which Welch has experience in12? Especially when many experts have been begging and pleading for justice for the causers of the Great Recession? 29, 30 What constituency has been begging the government to prosecute whistleblowers?

Obama's appointee, Mr. Breuer, also has some unusual interpretations of the laws regarding classified information. Jane Mayer quoted him in her New Yorker article about Thomas Drake's case in May 2011:

"Lanny Breuer, the Assistant Attorney General who supervises the department’s criminal division, told me, “You don’t get to break the law and disclose classified information just because you want to.”8

Drake did not disclose classified information, nor was he criminally charged with doing so. He was charged with "retention" of "national defense information", which is actually a very different thing, as Judge T.S. Ellis III pointed out in the 2009 resentencing hearing of Larry Franklin (of the AIPAC case).20

Contrary to Mr. Breuer's implication, there is actually no blanket law banning all disclosure of all classified information. Congress has repeatedly refused or failed to pass such a law, as pointed out the 1973 Columbia Law Review article by Harold Edgar and Benno Schmidt, and in a 2011 Congressional Research Service paper by Jennifer Elsea.14, 16 Congress and the Executive frequently disclose classified information to the media, as part of their political strategy. 21, 22 This is part of Kim's defense argument.23

Mr Breuer's comments are especially puzzling, considering that he himself defended Sandy Berger when Mr. Berger smuggled classified documents in his pants out of the National Archives.3, 8

The Kim, Leibowitz, Manning, and Cambridge Wikileaks cases did not develop under the Bush Administration. The alleged crimes, and the prosecutions, all occured while Obama was president. The Drake and Sterling cases, which did develop under President Bush, were/are prosecuted by William Welch, who is under Lanny Breuer, whom, as mentioned Obama appointed to his current high position.17

I have heard other people say that Obama has the power to make the DOJ 'not enforce DOMA', the Defense of Marriage Act 24. I have heard Obama say that he will not "look backwards" regarding prosecution of alleged torturers and torture lawyers25. As mentioned, Carrie Johnson of the Washington Post said that Eric Holder was the one who decided to drop the Stevens  case.19 POGO executive director Danielle Brian implied that their conversation with Obama about the Drake case may have influenced the dropping of charges in the case. 28

So. Does the President have the power to stop DOJ prosecutions, or not? Is the DOJ "Going Rogue" on poor President Obama, who is powerless to do anything about it? Are William Welch and the other Espionage Act prosecutors going off into the wilderness, while poor Mr. Holder can only watch in horror? Is the Army going off on it's own in the prosecution of Bradley Manning; or does the Commander in Chief have some influence in the matter? Are whistleblowers like Daniel Ellsberg31 and Jesselyn Radack32, and journalists like Jane Mayer8, Josh Gerstein33, and Shane Harris12 all wrong to use the phrase 'Obama Administration'? Who am I supposed to believe?

If someone could explain all this to me, I would appreciate it.

References

[1] Let's Not Lose Sight of Our Common Goals When it Comes to Whistleblower Protections and Government Transparency, Danielle Brian, Jun 14, 2011, POGO blog, (Project on Government Oversight)

[2] Rescind Obama’s “Transparency Award” Now!, Sibel Edmonds, boilingfrogspost.com, 2011 6 14

[3] US v. Stephen Kim: Selected Case Files, Federation of American Scientists

[4] Shamai Leibowitz charge, Federation of American Scientists

[5] Justice Dept. cracks down on leaks, Josh Gerstein, Politico, 2010 5 25

[6] WikiLeaks Grand Jury investigation widens Glenn Greenwald, Salon.com, Jun 9, 2011

[7] The United States Army v Bradley Manning Charge Sheets, Hague Justice Portal

[8] The Secret Sharer, Jane Mayer, The New Yorker, May 23 2011

[9] US v. Jeffrey Sterling: Selected Case Files, Federation of American Scientists

[10] Fifty Subpoenas Sought in Sterling Leak Case, Steven Aftergood, May 19th, 2011, Federation of American Scientists

[11] Judge Holds DOJ Prosecutors in Contempt in Stevens Case, Joe Palazzolo, Feb 17 2009, law.com

[12] Plugging the Leaks, Shane Harris, the Washingtonian, July 21 2010

[13]  DOJ Begins Search for Public Integrity Section Chief, Oct 21 2009, Mike Scarcella , LegalTimes blog.

[14] The Protection of Classified Information:  The Legal Framework
Jennifer K. Elsea , Legislative Attorney , January 10, 2011 , Congressional Research Service, via Federation of American Scientist's website.

[15] Blood Money Paid by Chiquita Shows Company's Hard Choices, November 26, 2007, Sue Reisinger

[16] The Espionage Statutes and Publication of Defense Information by Harold Edgar and Benno C. Schmidt, Columbia Law Review, May 1973, from Federation of American Scientists

[17] Lanny Breuer to Lead Justice Criminal Division Carrie Johnson, Washington Post, 2009 January 9

[18] William Welch II, prosecutor in Springfield corruption probe, in hot water over Ted Stevens case, Stephanie Barry, April 07, 2009, Masslive.com

[19] Head of embattled Justice Dept. unit is stepping down, Carrie Johnson, Washington Post, Oct 22 2009

[20] Reduction of Sentence Hearing for Larry Franklin, Judge T.S. Ellis III, US Distr. Ct. for Eastern Virginia / Alexandria, 2009, from the Federation of American Scientists

[21] Burn Before Reading, Stansfield Turner, Hyperion, 2005

[22] Drug Wars - Interview with Oliver North, PBS Frontline & NPR, 2000. WGBH Boston, Rain Media, Inc., Cam Bay Productions

[23] Letter to Assistant AG Kris and US Attorney Machen, Abbe Lowell & Kim's defense team, Oct 12 2010, from stephenkim.org

[24] Critics Call Obama DOMA Decision an Executive Power Grab, Devin Dwyer, ABC News, 2011 2 24

[25] Obama's Growing Dilemma on Torture Prosecution Mark Thompson, Apr. 22, 2009, Time.com

[26] Government Case Against Whistleblower Thomas Drake Collapses, Marcy Wheeler, The Nation, June 13, 2011

[27] Defendant's Motion to Dismiss  Count Two of the Indictment, James Wyda and Deborah Boardman, Federal Public Defenders, Feb 2011, Document 50 US v. Drake, from Federation of American Scientists website

[28] Let's Not Lose Sight of Our Common Goals When it Comes to Whistleblower Protections and Government Transparency By Danielle Brian, executive director of POGO, POGOblog, 2011 6 14

[29] Biggest Fish Face Little Risk of Being Caught Joe Nocera, New York Times, February 25, 2011

[30] Our Pecora Moment, Simon Johnson, April 17 2010, baselinescenario.com

[31] Left-Wing Icon Daniel Ellsberg 'Obama Deceives the Public', Der Spiegel interview, 06/09/2010

[32] Squeezing the Press from Both Sides: Obama's War on Reporters & Sources, Jesselyn Radack, DailyKos, 2010 9 19

[33] Despite openness pledge, President Obama pursues leakers, Josh Gerstein, Politico.com, 3/7/11

---

Odd factoid: The Kim case is prosecuted by US Attorney Jonathan Malis, who formerly prosecuted Chiqita, saying it "paid for weapons and ammunition to kill innocent people." Who was defending Chiqita? Eric Holder, now Obama's Atty. General. At the time Mr. Holder called Mr. Malis "a little too crafty . . a little deceptive." Lanny Breuer was working at the same lawfirm as Holder.15

Discuss

Update:

Please go read Jesselyn Radack's diary here: Too Classified to Try Myth in Failed Drake Prosecution

---

original diary begins:

The govermnent keeps on keeping on, saying that they dropped the case to prevent revealing important state secrets.

I find it hard to believe that a memo about 'what a great meeting!' contains important state secrets.

In my humble, uneducated, biased opinion, they dropped the case because judge Bennett wouldn't twist the Classified Information Procedures Act and the Silent Witness Rule into some kind of Kafka pretzel to totally strip a defendant of his right to a public trial - a right which goes back, oh, I don't know, a couple of hundred years in the English Common Law tradition.

Why do they like public trials in jolly old England and it's commonwealths? Because they decided somewhere along the line that the Spanish Inquisition, the Feme, the Star Chamber, and so forth, were simply horrible, but also pointless and had nothing to do with justice.

The government wanted, in effect, a secret trial. The judge, though granting them a good deal of secrecy, refused to throw out hundreds of years of jurisprudence.

If the public had seen, in full, a document like "Regular Meetings", the DOJ and NSA would have become laughing stocks. It would have embarassed the prosecution, the DOJ, the Attorney General, and the president of the United States. That is why we have public court rooms - to prevent parties from presenting evidence that is no good.

John P. Messina of the University of Chicago Law school has made a web page about the principle of the public trial:  Lawyer as Court Reporter in a Virtual Courtroom: Lessons from 600 Years of English Legal History. He describes an old fellow named Jeremy Bentham who lived back in the 1700s. Messina quotes Bentham's "Rationale of Judicial Evidence" (Chapter X 511-606), describing the effect on a witness at a public trial:

"In many cases, say rather in most . . . the publicity of the examination or deposition operates as a check upon mendacity or incorrectness. . . . [a witness] . . . "Environed, as he sees himself, by a thousand eyes, contradiction, should he hazard a false tale, will seem ready to rise up in opposition to him from a thousand tongues; many a known face, and every unknown one, presents to him a possible source of detection, from whence the truth he is struggling to suppress, may, through some unsuspected channel, burst forth to his confusion.”

The United States followed the tradition of the public trial in the creation of the Sixth Amendment of the Constitution. But it went further than that, creating case law to back up the constitutional principle. Messina quotes the Supreme Court in the Oliver case, from the 1940s, as follows:

"The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, . . .  to the excesses of
. . . the English Court of Star Chamber, . . . and to the French monarchy's abuse of the lettre de cachet. . . . All of these institutions obviously symbolized a menace to liberty. In . . .   the hands of despotic groups, each of them had become an instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power."

That's what was would have happened at the Drake trial. The government would have presented 'substituted' and 'redacted' versions of these documents; like "Collections Sites" and "Regular Meetings", that Drake was charged with 'retaining'. Ashamed of presenting them in public, the government would have had to resort to 'hiding' them at trial. The jury could have seen the documents, but the public would have a confusion of code words and 'substitutions' that would render them unable to follow what the witnesses were actually talking about.

If these documents had been shown, unredacted, to the public, the public would have realized how weak the government's case was. It would have caused an uproar. When the public saw a document with UNCLASSIFIED stamped all over it, and realized the government was trying to claim it was secret national defense information, and send a man to prison for it, they would have been completely outraged. The entire edifice of painting Drake as a leaker would have fallen apart. It would be replaced with the accurate portrait of him as a whistleblower, being persecuted as a "political heretic" (to borrow the Supreme Court's language). Public opinion means still means something, even in dictatorship (ask Mubarak), and especially in a democracy.

Judge T.S. Ellis III, when creating the four part fairness test for the Silent Witness Rule in the AIPAC case, said point blank that it represents 'partially closing' the trial. A closed trial is a secret trial, and a partially closed trial is a partially secret trial. And a partially secret trial is a partially unfair trial. And that is wholly unconstitutional.

That is why the government had to shut down the case. Not to prevent the revelation of government secrets. But because the government couldn't have won the case without cheating. And judge Richard D. Bennett didn't allow them to cheat.

References

[1] Lawyer as Court Reporter in a Virtual Courtroom: Lessons from 600 Years of English Legal History, by John P. Messina

[2] Govt Says It Will Excise All Reference to a Certain Technology, June 5, 2011, from Federation of American Scientists, Thomas Drake - Selected Case Files

[3] Former NSA official pleads guilty, Josh Gerstein, Politico, Jun. 10, 2011

Sign the Petition do Demand Accountability for the Selective Prosecution of Thomas Drake: Please click here to go to change.org
Discuss

Every "Initial Public Offering" of stuck in a public corporation involves one or more banks who help the company 'arrange' the deal.

During the first Tech bubble in the 1990s, the main players were Bear Stearns, Merrill Lynch, Morgan Stanley, and others. That collapsed in a haze of fraud and dishonesty. Then 9/11 came, then the CDO/mortgage ponzi scheme came, and the CLO/buyout scam, and the Auction Rate Securities scam, but then that bubble burst too. It took out Bear and Merrill and almost took out Morgan. But it didn't take out the idea of big megabanking. And megabanking requires megaprofits. With CDOs dead, what could they do?  They started dabbling in commodites, like wheat, oil, and metals. They are making new derivatives, like Catastrophe Bonds and Mortality Swaps, in which they can profit off of death and disasters. But those things only make so much profit.

So, they are going back to an old standby, the IPO. Every time a company does an IPO, the bank doing the 'bookrunning' makes a huge fee. This time it is the 'social media' IPO, not the 'tech IPO'. . So, who was 'bookrunning' Linkedin's IPO?

Morgan Stanley & Co
BofA Merrill Lynch
J.P. Morgan Securities LLC.
Allen & Company LLC
UBS Securities LLC

Ah yes. Morgan Stanley, which came a hair's breadth away from being bankrupt in 2008, if it hadn't been for a Japanese bank that bailed them out at the last minute. But they also had massive quantities of toxic assets that we, the taxpayer, were kind enough to take off their hands.

BofA Merrill Lynch. That's funny. It used to be Merrill Lynch, until we, the taxpayers, forced Bank of America to buy it in 2008, and then fired Bank of America's CEO, and then bailed out Bank of America with  several billion dollars.

JP Morgan. That company that swallowed Bear Stearns in 2008, because, again, we, the taxpayers, helped them do it.

Allen & Company - I have no idea who they are, nor do I want to. Every time I research a financial organization I wind up crying.

UBS - Another big CDO player . When we bailed out AIG, we taxpayers bailed out every big investment bank that was full of CDOs, including foreign banks like UBS.

UBS is pretty interesting. It used to be a financier of Hitler. Back in the late 1990s they were shredding records of Jewish property they had stolen during the Nazi Regime. There was a night security guard, Christoph Meili, who caught them doing this and smuggled some documents away, and gave them to Jewish group. This was rather inconvenient for UBS, as the United States and the European governments were, at the time, in negotiations for the London Conference on Nazi Gold.  You see the Swiss banks had decided to keep the money of dead Jews instead of giving it back to their relatives after the holocaust. Anyways. Christoph Meili became rather disfavored by UBS, and they had the Swiss authorities try to put him in prison. He escaped to the US, and was granted political asylum. He returned to Switzerland about 10 years later.

There is another UBS whistleblower. He was put in prison. His name is Bradley Birkenfeld and he  that a huge number of extremely rich people have been cheating on their US taxes. UBS's answer to this was to have Birkenfeld arrested. Now he will be in prison for 3 years in prison, in the United States.

Anyways. Our tax dollars at work.

References

Linkedin IPO Linkedin.com

Christoph Meili returns – as hero or villain? 2009 April 9, swissinfo.ch

UBS Whistleblower Gets Rewarded With Prison Time:Ann Woolner, August 25, 2009, Bloomberg.com

Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II, Stuart Eizenstat , 2003, PublicAffairs

Discuss

Sign the petition to demand accountability for the selective prosecution of NSA Whistleblower Thomas Drake

Note: Some may find this diary wandering, overlong, meandering, obtuse, and scatterbrained. I agree. However one person has expressed a like for it, so I reckon I'll post it anyways.

I am not the sharpest tack in the box. I'm not trained in national security, law, or much of anything really. Like most people, I first heard about the NSA whistleblower Thomas Drake case back in mid 2010. I didn't, at first, think he was a whistleblower. I thought he was just some guy who had been caught doing something dumb. Some of the news stories quote anonymous sources, saying that it was "hubris" or "corporate IT politics" that Drake had gotten caught up in. I believed that. Part of the problem was that I couldn't understand the basic facts of the case. It was like swimming through algae. I looked at the news stories; many were titled something like 'leak case' or 'leaker', and they had this 'tsk tsk' vibe and they were short on details. Most of them didn't even list the actual specific charges against him; they just said 'leaking'. I don't think any of the headlines said 'Whistleblower'. Now, looking back, I have to wonder; how can the word 'leaker' meet journalistic ethics rules for neutrality, but not the word 'whistleblower'?

Something about those words "Espionage" or "Leaking" seem to switch off the logic center of my brain. Maybe I just don't wan't to support anything that might "harm the troops", maybe I want to be patriotic. When the government says things, I'm inclined to believe them. In the Drake case, I believed what the indictment said... that he shredded documents, that he copy-pasted classified info, that he gave classified information to a reporter, and that he lied about all of it. I was totally, completely, one hundred percent wrong. And now I'm ashamed of myself.

Thanks to dozens more articles in the news media, like Gerstein @ Politico, and by bloggers like Jesselyn Radack @ whistleblower.org / dailykos.com, and the 'Save Tom Drake' facebook page, and now, recently, this new article in the New Yorker, by Jane Mayer, the muddy water is clearing up. The facts are coming to the surface and the sunshine is coming out. Drake's case is a travesty and the government should be ashamed of itself, and so should I for believing the government unquestioningly. This is the new McCarthyism - in fact, the law they are using against Drake is a law that was created during the McCarthy era, something I will describe at the end of this rant.

Thomas Drake carefully and meticulously avoided revealing any sensitive information to the reporter he dealt with. He did not 'leak', he did not 'disclose', and he did not 'deliver' sensitive information.

A bunch of the documents he is charged with 'retaining' were not classified. The government decided to classify them, --after they had indicted him--. The law they charged him with, 18 USC 793(e), doesn't even use the word 'classified', it uses the phrase 'national defense information'. One must ask, then, why the government bothered to 'retroactively classify' the documents, if their classification has no bearing on the case? Judges have specifically declared that classification doesn't matter in a 793(e) case - the jury is supposed to ignore all that and just decide whether it's 'national defense information' or not.

The government says it doesn't want to play the case in the media. Why, then, did the government  issue such a damning press release announcing it's indictment of Mr. Drake? Why did the government write an indictment against Mr. Drake with pages and pages of irrelevant details that are completely unrelated to the charges against him?

The government claims that he lied to them about giving classified information to a reporter. That makes it sound like he gave classified information to a reporter. He didn't. See what they did there? They faked me out; making me think he did two bad things at once. But he did neither. He told the FBI that he didn't give classified information to a reporter. Then the FBI said that they think he did, and that therefore he is lying. See how it works?

The government claims Drake lied about copy/pasting classified information. But he copy/pasted material that was not sensitive and not classified. He took great pains to avoid copying anything sensitive. They decided he didn't, and that therefore he was lying. They charged him with 'making a false statement'.

They say he 'deleted documents'. Do you ever delete files off of your computer? That's what Drake did. Drake, the "mad shredder", did the same thing you do every day to free up space on your hard disk. They call that 'obstruction of justice'.

It's like if the city government decided to change the speed limit from 45 to 25, then retroactively fined everyone for speeding. Then, if a driver said they weren't speeding, the government would declare them liars. Then, if a driver reset their trip odometer, which is a normal activity for a car owner, the government would declare that to be "obstructing justice" and "deleting evidence". It is a legal edifice built upon a foundation of logical sand.

If you have ever seen the famous youtube video entitled "Don't talk to the police", this is a perfect case of why you shouldn't. In that video, a lawyer and a police officer detail all the various tricks that  police use to catch suspects in lies and confessions. The police officer in the video is an honest cop; he points out that his purpose is not to convict innocent people. Professor Duane points out that some police officers are not as upstanding as Officer Bruch.

The trick they used on Drake is similar to the trick they used on Dr. Wen Ho Lee, as he described in his book "My Country Versus Me". They lied to Lee in order to get him into a room on false pretenses, for example saying they needed his help on another case. Then they went into  long, long interview sessions, asking him tons of confusing questions, and often the same question multiple times over the course of several hours or days. If he made a tiny discrepancy in wording they claimed he was lying. If he said he didn't copy classified information, like math equations that can be found in college textbooks, they would simply decide the information was classified anyways and then claim he was lying about it. They used a similar trick against Stephen Jin-Woo Kim, who is also currently fighting an Espionage Act charge for having a conversation with a reporter about whether North Korea might test a nuclear bomb. They simply asked him a bunch of questions and then tricked him into screwing up the facts surrounding the timing of his contacts with the reporter. All three of these men have one thing in common; they were trying to be 'helpful' and cooperate with the FBI. They all got punished for their good intentions.

The FBI raided the houses of several of Drake's friends in 2007; Roark, Binney, and Wiebe. Why? His friends had filed a request for the government to investigate what they felt was waste, fraud, and abuse at the NSA in the Trailblazer program. That was in 2002. Five years later, the raids happened.

The government burst into their homes. Some of them had kids in their homes at the time. One of them claims, in the Mayer article, that government agents pointed a gun at his head, and also at his wife. The government seized their personal information, their computers, etcetera.

I have wondered why we have not heard anything from Roark, Binney, Wiebe, and Loomis all through 2010 and early 2011. The closest I remember is that Roark's lawyers spoke to reporters from Newsweek. Jane Mayer's article is the first I recall of hearing their stories in their own words.

Perhaps, with all the details in Mayer's article, there is an explanation of why we haven't heard anything from them. I cannot know for certain, but if I had been in their shoes, had my house raided, my family threatened, my computers taken, and my friend facing 35 years in prison; I would be frightened. Add these details to the 'draft indictment' against Drake; originally his  friends were named in it, their names were only dropped from the indictment later, circa 2009. In the face of all that, I probably wouldn't speak with anyone. But that is just my speculation.

A commenter on slashdot named Geoboxer says the following:

"this surveying and whistleblower retribution essentially blows watergate out of the fucking water."

I don't know if experts would agree, and I am certainly not an expert, but it seems like it's in the same ballpark. Nixon personally ordered the organs of state to illegally spy on, intimidate, harass, and prosecute his political opponents and critics. I haven't personally seen evidence that Bush or Obama  did anything on that level. However, this Drake case certainly doesn't make things look good. And we are only finding out about the details many many years after it happened. Bush's staff also harassed whistleblowers like Jesselyn Radack and Sibel Edmonds. What Obama did to Bradley Manning is unconscionable. There are many others, many that we probably don't even know about. It is not exactly a record that inspires confidence in Bush's administration nor in Obama's.

One of the hallmarks of Nixon's problems was that his behavior shocked all spectrums of the political rainbow. It is funny then, today, to find various stripes of internet comment boards have similar sentiments about the activity uncovered in Jane Mayer's article. Who is defending the government here, in the public sphere? When you dig through news articles on the Drake case, there are a few people accusing him of hubris or of being angry about corporate politics. Maybe, but the more facts that come out, the less that seems to be correct.

According to Mayer's interviews, Drake and his friends were not simply worried about wasting money. Drake says that what the govermnent was doing made Nixon's group "look like pikers". (piker: One who does things in a small way. Merriam Webster's online). Binney said he should apologize to the American people; his work had been 'twisted'; he believes the government is collecting phone records and email on everyone in the country. They all quit over their concerns. Even Drake's boss, Baginski, number 3 at the agency, quit for similar reasons, according to Mayer. It's hard to believe that this was simply office politics about an IT system.

There are also commenters who say he should have gone through 'official channels', and not 'leak to the press'. That is a nice meme, but he did go through official channels. That is the only reason the government targeted his friends; because they had all gone through the official channel of filing an Inspector General complaint. If they had just 'gone to the press', they probably wouldn't be in trouble because the government coudln't have figured out who they were. Furthermore, he didn't "leak to the press". He didn't "leak" anything. He talked to a reporter about unclassified, non sensitive information.

I feel ashamed now. The government has lied to us. I have been hoodwinked, with apologies to Malcolm X. I am so caught up in this terror scare that I have just started to accept things without applying my God-given brain (such as it is) to the facts. I believed the government, despite the large mounds of evidence in the past few years that the government is often incompetent, dishonest, and prone to use it's power to cover it's own mistakes rather than to protect security. Pat Tillman, Iraq WMDs, the failure of the 9/11 commission to interview key FBI and NSA personnel, etc etc etc. And now, armed agents raiding whistleblowers houses and pulling loaded guns on them and their family. I wish the dozens of FBI & DOJ agents assigned to this whistleblower case had been assigned instead to the FBI's recent raids on Maria Salvatrucha and other violent gangs; the Mexican mafias make Al Qaeda look like rank amateurs.

Oh, I promised to discuss how the law they are using against Mr. Drake came out of the McCarthy Era. His indictment says he is charged with 18 USC 793(e). If you look at the history of this law, US Code Title 18, section 793 subparagraph (e), you will find out that it was created as part of the massive McCarran Internal Security Act of 1950, which was passed during the Second Red Scare. This act was actually vetoed by President Truman, who described it as follows:

"The course proposed by this bill would delight the Communists, for it would make a mockery of the Bill of Rights and of our claims to stand for freedom in the world."

The congress overturned his veto.

793(e) was created basically to enable the government to prosecute people like Alger Hiss and Whittaker Chambers; Mr Chambers had hidden a bunch of state department documents in a pumpkin, and a new Congressman named Richard Nixon had worked on the case against his former associate  Hiss. It turns out that neither Hiss nor Chambers were prosecutable for Espioange, because the old fashioned Espionage Act from 1917 only applied to people who had 'delivered' documents. So, the congress put this word "retained" into 793(e), thus making the Espionage Act applicable to the next alleged Soviet spy that might come along.

Of course, most of the actual, real Soviet spies, like Ames and Walker, were prosecuted under the old fashioned 1917 Espionage law sections, like (d), without resorting to (e). And it turns out that 793(e) has been used against a lot of non-spies, whistleblowers, and innocents over the years, like Russo and Ellsberg, Morison, Dr. Wen Ho Lee, Rosen, Weissman, and now Thomas Drake.

Anyways. The more facts that come out about the Drake case, the more it seems like the government is not giving us the whole story, and the worse the government's motivations look. I know, that, we are supposed to allow the trial to decide on a lot of these facts. The judge and jury are supposed to decide the outcome. But in the governments statements, it's press releases, and it's indictment, it has tossed away all those considerations, going way, way beyond the actual charges, and painted a picture of the defendant that is simply not matching up with reality as time goes on and the facts are revealed. I was fooled. I believed the government without asking questions. My apologies.

"In the intoxication of youthful successes I had felt myself to be infallible, and I was therefore cruel. In the surfeit of power I was a murderer and an oppressor. In my most evil moments I was convinced that I was doing good, and I was well supplied with systematic arguments. It was only when I lay there on rotting prison straw that I sensed within myself the first stirrings of good. Gradually it was disclosed to me that the line separating good and evil passes not through states, nor between classes, nor between political parties either, but right through every human heart, and through all human hearts. This line shifts. Inside us, it oscillates with the years. Even within hearts overwhlemed by evil, one small bridgehead of good is retained; and even in the best of all hearts, there remains a small corner of evil."

-Alexander Solzhenytsin, Gulag Archipelago, quoted at John Simkin's Spartacus Schoolnet

Sign the petition to demand accountability for the selective prosecution of NSA Whistleblower Thomas Drake
References

The Espionage Statutes and Publication of Defense Information, Edgar and Schmidt, Columbia Law Review, 1973, from Federation of American Scientists website

The Secret Sharer, Jane Mayer, New Yorker, May 2011

Never Talk to the Police, Professor James Duane and Officer George Bruch, Youtube / Google Video

I plead the Fif, Dave Chapelle & writers, Chapelle's Show

The New Yorker's Damning Dissection of "Leak" Prosecution of Thomas Drake, Jesselyn Radack, Daily Kos

Save Tom Drake, facebook page

Government Accountability Project, whistleblower.org

Under the Radar, Josh Gerstein, Politico

Former NSA Senior Executive Charged with Illegally Retaining Classified Information, Obstructing Justice and Making False Statements, US DOJ press release, 2010 4 15, as stored at the Federation of American Scientists' website.

Indictment of Thomas Andrews Drake, US DOJ 2010, from the Federation of American Scientists' website

Truman's Veto of the McCarran Act (1950), wadsworth.com

My Country Versus Me Wen Ho Lee, Helen Zia, 2002, Hyperion

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