The travesty calling itself “the Bradley Manning court-martial”, the kangaroo tribunal calling itself “the FISA court”, and the emptiness of what the Obama DOJ calls “your constitutional rights”.
A military judge this week refused to dismiss the most serious charge against Bradley Manning. (Patrick Semansky/AP)
I’m on a (much-needed) quick vacation until Sunday, so I’ll just post a few brief items from what has been a busy and important week of events, particularly when it comes to press freedom and privacy:
(1) In the utter travesty known as “the Bradley Manning court-martial proceeding”, the military judge presiding over the proceeding yet again showed her virtually unbreakable loyalty to the US government’s case by refusing to dismiss the most serious charge against the 25-year-old Army Private, one that carries a term of life in prison: “aiding and abetting the enemy”. The government’s theory is that because the documents Manning leaked were interesting to Osama bin Laden, he aided the enemy by disclosing them. Harvard Law Professor Yochai Benkler explained in the New Republic in March why this theory poses such a profound threat to basic press freedoms as it essentially converts all leaks, no matter the intent, into a form of treason.
At this point, that seems to be the feature, not a bug. Anyone looking for much more serious leaks than the one that Manning produced which ended up attracting the interest of bin Laden should be looking here. The Obama White House yesterday told Russia that it must not persecute “individuals and groups seeking to expose corruption” – as Bradley Manning faces life in prison for alerting the world to the war abuses and other profound acts of wrongdoing he discovered and as the unprecedented Obama war on whistleblowers rolls on. That lecture to Russia came in the context of White House threats to cancel a long-planned meeting over the Russian government’s refusal to hand over NSA whistleblower Edward Snowden to the US to face espionage charges.
(2) The kangaroo tribunal calling itself “the FISA court” yesterday approved another government request (please excuse the redundancy of that phrase: “the FISA court approved the government’s request”). Specifically, the “court” approved the Obama administration’s request for renewal of the order compelling Verizon to turn over to the NSA all phone records of all Americans, the disclosure of which on June 6 in this space began the series of NSA revelations. This ruling was proudly announced by the office of the Director of National Intelligence, which declassified parts of that program only after we published the court ruling. In response, the ACLU’s privacy expert Chris Soghoian sarcastically observed: “good thing the totally not a rubberstamp FISA court is on the job, or we might turn into a surveillance state”; the Wall Street Journal’s Tom Gara noted: “Reminder: The style guide for mentioning the FISA court is that it’s written ‘court’ with scare quotes.”
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(3) In response to our NSA reporting, several groups, including the ACLU and EFF, filed lawsuits challenging the constitutionality of the US government’s spying programs. A federal court yesterday heard arguments in the suit brought by the ACLU, and the Obama DOJ asked the court to dismiss it on several grounds, including that it “cannot be challenged in a court of law”.
(4) Speaking of the Obama DOJ attempting to block judicial adjudication of the legality of its actions: a different federal judge heard a lawsuit yesterday challenging the constitutionality of Obama’s extra-judicial killings by drones of three American citizens, including the 16-year-old American-born Abdulrahaman Awlaki, whose grandfather wrote this powerful Op-Ed in the New York Times this week under the headline “The Drone That Killed My Grandson”. The judge repeatedly expressed incredulity at the DOJ’s argument that courts had no role to play in reviewing the legality of these killings, which then led to this exchange:
“‘Are you saying that a US citizen targeted by the United States in a foreign country has no constitutional rights?’ she asked Brian Hauck, a deputy assistant attorney general. ‘How broadly are you asserting the right of the United States to target an American citizen? Where is the limit to this?’
“She provided her own answer: ‘The limit is the courthouse door’ . . . .
“‘Mr. Hauck acknowledged that Americans targeted overseas do have rights, but he said they could not be enforced in court either before or after the Americans were killed.'”
Re-read that last line, as it’s the Obama administration in a nutshell: of course you have those pretty rights, dear citizens. It’s just that nobody can enforce them or do anything to us when we violate them. But you do have them, and they’re really, really important, and we do value them so very highly, and President Obama will deliver another really majestic speech soon in front of the Constitution about how cherished and valued they are.
(5) The Obama DOJ obtained what it considers an important victory: an appellate court in Virginia rejected the argument from New York Times reporter Jim Risen that, as a journalist, he cannot be compelled to testify about the identity of his sources. I wrote last year about the reasons the Obama DOJ’s pursuit of Risen is so pernicious and threatening to press freedom and gave the background to the case: here. As he set forth in his affidavit, Risen believes, with good reason, that the DOJ’s pursuit of him is in retaliation for his prior reporting, including his having exposed the NSA’s warrantless eavesdropping program in 2005.
(6) In 2003, two dozen or so CIA agents kidnapped an Egyptian citizen from a street in Milan where he was living after Italy granted him asylum from persecution by the US-allied Mubarak regime. The CIA then rendered their kidnapped victim back to Egypt where he was interrogated and tortured. Italian authorities criminally charged the CIA agents with kidnapping, and after the US refused to turn them over for trial, they were convicted in abstentia. One of them, Milan CIA station chief Robert Lady, was sentenced to several years in prison. I wrote about that case, and US behavior in it, several months ago: here.
Lady ended up in Panama, and when the Italians learned of this, they requested his extradition to Italy. The US government intervened and applied significant pressure to Panamanian officials, who, yesterday, predictably released Lady and put him on a plane back to the US. The next time the US lectures the world about the rule of law and need for accountability, I’m sure this incident will be on many people’s minds. It should be.
Also: for those in official Washington – including its press corps – who have been demanding that Edward Snowden come and “face the music” of the charges against him, will you be demanding the same of CIA official Robert Lady, who – unlike Snowden – has committed serious crimes (kidnapping) and has been convicted of those crimes?
(7) For a glimpse into the mind of the National Security State when it comes to transparency and press freedoms, do read this unhinged screed published by CNN from Bush-era CIA and NSA chief Gen. Michael Hayden about the NSA stories in which, among other things, he says that I am “far more deserving of the Justice Department’s characterization of a co-conspirator than Fox’s James Rosen ever was”. What makes that so ironic is that I’ve been arguing for many years now that Hayden and the other Bush officials who implemented the illegal warrantless eavesdropping program aimed at American citizens should be criminally prosecuted. Speaking of glimpses into the minds of the US National Security State, do read this remarkable exchange between AP’s excellent reporter Matt Lee and a State Department spokesman over Russia and Snowden.
(8) I’m going to write more about this next week, but Rep. Rush Holt is running for the New Jersey Senate seat that became vacant when Democrat Frank Lautenberg died. The special election is on August 13. Holt has long been one of the best members of Congress: a genuine stalwart on civil liberties and privacy and vehement opponent of the crony capitalism that governs DC. A physicist by profession, he’s incredibly smart, independent, and unique. Here was Holt on the House floor in 2008 expressing his vehement opposition to the 2008 FISA Amendments Act, the bill enacted with a bipartisan majority (including the support of President Obama) that legalized much of the massive surveillance state that now plagues us:
The favorite in the race is a typical Democratic establishment candidate, Newark Mayor Cory Booker, who will be a loyal party member and is drowning in Wall Street cash. Having Rush Holt in the Senate would be a substantial boost to all sorts of issues that I write about here most.
Here he is in 2007 warning again of the dangers of the surveillance state:
Those interested can (and I hope will) read about, support and donate to his candidacy here.