Category Archives: Department of Justice

The National Security State of America

An American teenager, forced into temporary exile and then tortured in Kuwait– almost certainly with the knowledge of the Obama administration — has been freed.

A Northern Virginia teen who had been barred from flying home from Kuwait landed in Washington on Friday morning, four weeks after being detained, allegedly beaten by Kuwait authorities and questioned by FBI agents about possible terrorist connections.

Gulet Mohamed, dressed in a worn hooded sweat shirt and sweat pants, was embraced by his family after he arrived at Dulles International Airport, the end of an ordeal that he said had “made me stronger.”

The United States “is built upon fighting for your rights,” Mohamed, 19, said in an interview.

Civil liberties groups charge that his case is the latest episode in which the U.S. government has temporarily exiled U.S. citizens or legal residents so they can be questioned about possible terrorist links without legal counsel.

The American Civil Liberties Union is suing the U.S. government on behalf of 17 citizens or legal residents who were not allowed to board flights to, from or within the United States, presumably because, like Mohamed, they were on the government’s no-fly list. Of those stranded overseas, all were eventually told they could return, often after they agreed to speak to the FBI. None was arrested upon their return.

The ACLU suit, filed in Portland, Ore., alleges that Americans placed on the no-fly list are denied due process because there is no effective way to challenge their inclusion. The government does not acknowledge that any particular individual is on the no-fly list or its other watch lists. Nor will it reveal the exact criteria it uses to place people on its list.

Meanwhile, the Washington Post reports:

The drone technology that has revolutionized warfare in Iraq, Afghanistan and Pakistan is entering the national airspace: Unmanned aircraft are patrolling the border with Mexico, searching for missing persons over difficult terrain, flying into hurricanes to collect weather data, photographing traffic accident scenes and tracking the spread of forest fires.

But the operation outside Austin [described at the beginning of this report] presaged what could prove to be one of the most far-reaching and potentially controversial uses of drones: as a new and relatively cheap surveillance tool in domestic law enforcement.

For now, the use of drones for high-risk operations is exceedingly rare. The Federal Aviation Administration – which controls the national airspace – requires the few police departments with drones to seek emergency authorization if they want to deploy one in an actual operation. Because of concerns about safety, it only occasionally grants permission.

But by 2013, the FAA expects to have formulated new rules that would allow police across the country to routinely fly lightweight, unarmed drones up to 400 feet above the ground – high enough for them to be largely invisible eyes in the sky.

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Secrecy is the original sin

From Truthout:

Largely because of his advocacy of psychedelic drugs, Tim Leary became a high-profile political prisoner whom Nixon called “the most dangerous man in America” (the same label Nixon used to describe Daniel Ellsberg). Leary was sentenced to ten years in prison for possession of .0025 grams of cannabis.

After escaping from prison in 1970, he became the object of an international manhunt. Finally captured in Afghanistan, he was kidnapped by the CIA – there was no extradition treaty between the two countries – and brought back to face four more years in prison, including long stretches in solitary confinement, before he was released in 1976. The following is an excerpt from a text he wrote in maximum-security Folsom Prison, California, in May 1973. — Michael Horowitz

Timothy Leary writing at the time of Watergate:

When you think about it, secrecy is the cause of the whole flap. Ellsberg and Russo published some secrets. Leaks in the White House. The plumbers steal Ellsberg’s psychiatric secrets. And bug the Democrat’s phone calls. The entire White House is involved in cover-up. The hearings center on cover-up of the cover-up.

Secrecy is the enemy of sanity and loving trust. If you keep secrets, you are an insane paranoiac. Concealment is the seed source of every human conflict. Secrecy is always caused by guilt or fear. [Gordon] Liddy’s parents were guilty about sex. And Nixon’s parents. It drives them crazy when he secretly suspects that she’s keeping secrets so he hires a private detective and vice versus.

Let’s break out of the huddle. Before [FBI Director] J. Edgar Hoover there were no secret police in this country. Before World War II there was no C.I.A. and America was amazingly unconcerned with secrecy. The hidden sickness has become lethally epidemic in the last forty years.

Now comes the electronic revolution. Reveal-ation. Bugging equipment effective at long distances is inexpensive and easily available. Good. Liberals want stiff laws against bugging. It’s the wrong move. Legalize everything. Legalize bugging. Let’s forget artificial secrets and concentrate on the mysteries.

I can tell you bugging is nothing to worry about. I’ve been tapped, surveilled, tailed for ten years. In Algeria everyone knew of at least three taps on all international calls — Algerian, French and C.I.A. The Algerians knew every move we made. That’s why they liked us. I was called in once by the Swiss Secret Service about some threats on my life. They offered me body guards. I looked at the chief agent and laughed. “Moi! Merci, non.” The agent laughed with me. “Professor, the Swiss police never sleep. We watch over you twenty-four hours a day.” Any real true intimate secrets are preserved in the tender codes of love. Privacy is woven with electric threads of contact that cannot be INTERCEPTED. Love has nothing to hide.

Secrecy is the original sin. Fig leaf in the Garden of Eden. The basic crime against love. The issue is fundamental. What a blessing that Watergate has been uncovered to teach us the primary lesson. The purpose of life is to receive, synthesize, and transmit energy. Communication fusion is the goal of life. Any star can tell you that. Communication is love. Secrecy, withholding the signal, hoarding, hiding, covering up the light is motivated by shame and fear, symptoms of the inability to love. Secrecy means that you think love is shameful and bad. Or that your nakedness is ugly. Or that you hide unloving, hostile feelings, Seed of paranoia and distrust.

Those who love have no need to hide their actions. As so often happens, the extreme wing is half right for the wrong reasons. They say primly: if you have done nothing wrong, you have no fear of being bugged. Exactly. But the logic goes both ways. Then F.B.I, files, and C.I.A. dossiers, and White House conversations should be open to all. Let every thing hang open. Let government be totally visible. The last, the very last people to hide their actions should be the police and government.

We operate on the assumption that everyone knows everything, anyway. There is nothing and no way to hide. This is the acid message. We’re all on cosmic T.V. every moment. We all play starring roles in the galactic broadcast: This Is Your Life. I remember the early days of neurological uncovering, desperately wondering where I could go to escape. Run home, hide under the bed, in the closet, in the bathroom? No way. The relentless camera “I” follows me everywhere. We can only keep secrets from ourselves.

And none of the legal experts get the point of Watergate. [Special prosecutor Archibald] Cox chasing leaks from his own staff.

We recall the classic political scandals involving secrets: Dreyfus, Alger Hiss, the Rosenbergs. The heroic figures around whom Watergate revolves, Tony [Russo] and Dan [Ellsberg]. Brave Russian dissenters uncovering the secret that everyone knows about Soviet repression.

I laugh at government bugging. Let the poor, deprived, bored creatures listen to our conversations, tape our laughter, study our transmissions. Maybe it will turn them on. Perhaps they’ll get the message our love-shine transmits: there is nothing to fear.

From Neuropolitics, 1977.

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Don’t be distracted by body scanners: government spying and the Fourth Amendment

Martin Lijtmaer writes:

On December 15, Bill of Rights Day, the uproar over body scanners had brought the Fourth Amendment to the front of the public debate. There are legitimate reasons to be upset over invasive, costly and arguably ineffective measures adopted in the guise of protecting national security. But the call to arms over body scanners is a distraction.

First, it’s debatable whether body scanners violate the Fourth Amendment. There is a plausible argument that such security measures are reasonable in light of potential hijacking threats. With 9/11 still etched in our national psyche, it’s hard to imagine that courts would deem body scanners unconstitutional.

Second and more important, the uproar over body scanners distracts us from far more egregious constitutional violations routinely committed by our government.

The Fourth Amendment explicitly prohibits authorities from conducting “unreasonable searches and seizures” and requires judicially authorized warrants based on “probable cause” that “particularly describ[es] the place to be searched and the persons or things to be seized.” Thanks to the Fourth Amendment, police must reasonably suspect criminal activity before conducting a stop and, absent rare exceptions, must secure a warrant, signed by a judge, before conducting a search.

However, in the wake of 9/11, federal agencies have fully ignored these constitutional restraints.

Let’s take, for example, the rampant use of national security letters (NSLs) by the FBI. NSLs are requests for information targeting an individual, but issued to third parties, such as Internet service providers, financial institutions or libraries. The Fourth Amendment requires that such information be obtained through a search warrant signed by a judge, supported by probable cause and specifically describing both the target of the warrant and reason for it.

However, the FBI employs NSLs unrestrained by any of these constitutional requirements. In other words, the FBI can access your highly personal and private information on a whim. And it has not used this power sparingly.

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FBI delivers subpoenas to four more anti-war, solidarity activists as U.S. Attorney Patrick Fitzgerald expands witch hunt

A press release from the Committee to Stop FBI Repression says:

The FBI came unannounced to knock on doors at two apartments in Chicago this morning. FBI agent Robert Parker, under orders from U.S. Attorney Patrick Fitzgerald’s office, delivered a subpoena to Maureen Murphy. Murphy, like several other individuals served subpoenas, is an organizer with the Palestine Solidarity Group-Chicago.

This continues the repression unleashed by Fitzgerald on the anti-war movement since September 24th, when fourteen subpoenas were delivered to anti-war, labor, and solidarity activists in coordinated raids involving more than 70 federal agents. Armed FBI agents raided homes, taking computers, phones, passports, documents, notebooks, and even children’s artwork. A total of 23 subpoenas have been served to activists around the country.

Maureen Murphy said, “Along with several others, I am being summoned to appear before the Grand Jury on Tuesday, January 25th, in the Dirksen Federal Building in Chicago. We are being targeted for the work we do to end U.S. funding of the Israeli occupation, ending the war in Afghanistan and ending the occupation of Iraq. What is at stake for all of us is our right to dissent and organize to change harmful US foreign policy.” Ms. Murphy is also the Managing Editor of the widely-read website, The Electronic Intifada.

In addition, three women in Minneapolis – Tracy Molm, Anh Pham, and Sara Martin – are threatened with reactivated subpoenas by Fitzgerald’s office and new Grand Jury dates. Tom Burke of the Committee to Stop FBI Repression explained, “It is likely the three individuals, like all the others so far, will continue to refuse to take part in Fitzgerald’s witch hunt. Fitzgerald can then call for putting them in jail as long as he wants.”

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The legal assault on WikiLeaks and press freedom

As the Justice Department develops a legal strategy for attacking WikiLeaks it will be looking for political cover to defend itself from the charge that it is attacking the First Amendment rights of a free press and will do so by arguing that what WikiLeaks does is not journalism.

The administration’s lack of interest in defending the Constitution is transparent. The question is, where will the pillars of the American mainstream media establishment take their stand? In defense of a free press? Or will they equivocate because they attach greater value to the privilege of government access than they do to their obligation to serve the public?

Wired reports:

The Justice Department would have no problem distinguishing WikiLeaks from traditional media outlets, if it decides to charge WikiLeaks founder Julian Assange with violating the Espionage Act, a former federal prosecutor told lawmakers Thursday.

“By clearly showing how WikiLeaks is fundamentally different, the government should be able to demonstrate that any prosecution here is the exception and is not the sign of a more aggressive prosecution effort against the press,” said Kenneth Wainstein (pictured at right), former assistant attorney general on national security, during a House Judiciary Committee hearing about WikiLeaks and the Espionage Act on Thursday.

The hearing was the first to publicly address WikiLeaks. It consisted of testimony from legal scholars and attorneys as well as former Green Party presidential candidate and consumer advocate Ralph Nader. Testimony focused primarily on whether the 1917 Espionage Act should be revised to make it easier to prosecute recipients of classified information.

But Wainstein’s remarks, coming from a former prosecutor, hint at arguments the Justice Department is likely to make if it proceeds with prosecuting Assange under the existing Espionage Act.

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The DOJ’s conspiracy to criminalize investigative journalism

The New York Times has reported that the Department of Justice is investigating the possibility that Julian Assange could be charged as a conspirator in the leaking of classified documents. The aim would be to draw a distinction between Assange’s actions and those of journalists. But as Glenn Greenwald points out, investigation journalism involves all sorts of actions which would fall foul of the same theory of conspiracy.

Very rarely do investigative journalists merely act as passive recipients of classified information; secret government programs aren’t typically reported because leaks just suddenly show up one day in the email box of a passive reporter. Journalists virtually always take affirmative steps to encourage its dissemination. They try to cajole leakers to turn over documents to verify their claims and consent to their publication. They call other sources to obtain confirmation and elaboration in the form of further leaks and documents. Jim Risen and Eric Lichtblau described how they granted anonymity to “nearly a dozen current and former official” to induce them to reveal information about Bush’s NSA eavesdropping program. Dana Priest contacted numerous “U.S. and foreign officials” to reveal the details of the CIA’s “black site” program. Both stories won Pulitzer Prizes and entailed numerous, active steps to cajole sources to reveal classified information for publication.

In sum, investigative journalists routinely — really, by definition — do exactly that which the DOJ’s new theory would seek to prove WikiLeaks did. To indict someone as a criminal “conspirator” in a leak on the ground that they took steps to encourage the disclosures would be to criminalize investigative journalism every bit as much as charging Assange with “espionage” for publishing classified information.

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Julian Assange freed on bail

The Guardian reports:

Britain’s high court today decided to grant bail to Julian Assange, the WikiLeaks founder who is wanted in Sweden for questioning over allegations of rape.

Justice Duncan Ouseley agreed with a decision by the City of Westminister earlier in the week to release Assange on strict conditions: £200,000 cash deposit, with a further £40,000 guaranteed in two sureties of £20,000 and strict conditions on his movement.

The New York Times reports:

Federal prosecutors, seeking to build a case against the WikiLeaks leader Julian Assange for his role in a huge dissemination of classified government documents, are looking for evidence of any collusion in his early contacts with an Army intelligence analyst suspected of leaking the information.

Justice Department officials are trying to find out whether Mr. Assange encouraged or even helped the analyst, Pfc. Bradley Manning, to extract classified military and State Department files from a government computer system. If he did so, they believe they could charge him as a conspirator in the leak, not just as a passive recipient of the documents who then published them.

Among materials prosecutors are studying is an online chat log in which Private Manning is said to claim that he had been directly communicating with Mr. Assange using an encrypted Internet conferencing service as the soldier was downloading government files. Private Manning is also said to have claimed that Mr. Assange gave him access to a dedicated server for uploading some of them to WikiLeaks.

Glenn Greenwald writes:

Bradley Manning, the 22-year-old U.S. Army Private accused of leaking classified documents to WikiLeaks, has never been convicted of that crime, nor of any other crime. Despite that, he has been detained at the U.S. Marine brig in Quantico, Virginia for five months — and for two months before that in a military jail in Kuwait — under conditions that constitute cruel and inhumane treatment and, by the standards of many nations, even torture. Interviews with several people directly familiar with the conditions of Manning’s detention, ultimately including a Quantico brig official (Lt. Brian Villiard) who confirmed much of what they conveyed, establishes that the accused leaker is subjected to detention conditions likely to create long-term psychological injuries.

Since his arrest in May, Manning has been a model detainee, without any episodes of violence or disciplinary problems. He nonetheless was declared from the start to be a “Maximum Custody Detainee,” the highest and most repressive level of military detention, which then became the basis for the series of inhumane measures imposed on him.

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The FBI’s effort to silence political dissent in America

In These Times reports:

September 24 began like any other Friday for Joe Iosbaker and Stephanie Weiner. Then, at 7 a.m., FBI agents knocked on the door of the Chicago couple’s house in the city’s North Side.

Armed with a search warrant, more than 20 agents examined the couple’s home, photographing every room and combing through notebooks, family videos and books, even their children’s drawings. Some items were connected to their decades of anti-war and international solidarity activism, but others were not. “Folders were opened, letters were pulled out of envelopes,” says Weiner, an adult education professor at Wilbur Wright College. “They had rubber gloves and they went through every aspect of our home.”

Ten hours after their arrival, as television news crews filmed and activist supporters stood on the sidewalk, the agents drove away with nearly 30 boxes of material, including t-shirts and a photograph of Malcolm X. By that time, Iosbaker and Weiner had been served subpoenas to appear before a grand jury investigating “material support” for “foreign terrorist organizations.” And they knew theirs wasn’t the only home invaded that day. More than 70 FBI agents had raided seven residences in Chicago and Minneapolis and questioned activists in Michigan, California and North Carolina, serving subpoenas to 11 people. A few days later, the Justice Department subpoenaed members of the Minnesota Anti-War Committee (AWC), whose office was also raided on September 24, raising the number to 14. (Editor’s note: five additional Chicago-area activists were subpoenaed in early December; see update below.)

The grand jury and FBI are looking for evidence that connects the 14 activists and their “potential co-conspirators” to two organizations: the Revolutionary Armed Forces of Colombia (FARC) and the Popular Front for the Liberation of Palestine (PFLP), which are both on the State Department’s “Foreign Terrorist Organizations” list. None of the 14 has been charged with a crime, and all deny providing “material support,” including money, to any foreign organization.

Citing the Fifth Amendment, all 14 are refusing to testify before the grand jury, which they say is a secretive arm of a government intent on silencing critics.

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How to spot a terrorist

Eric Holder went to California to provide an update on the FBI’s terrorist training program. What he has yet to acknowledge is this: if the FBI can’t catch “terrorists” without first providing them with fake bombs, maybe the guys they’re catching aren’t really terrorists.

Doesn’t the criminal process attach as much importance to means as it does to motives? Disregard means, and we are heading into the Orwellian world of thoughtcrimes.

The New York Times, reporting on the Attorney General’s speech to Muslim Advocates, said:

In his remarks, Mr. Holder said that stings had been used for decades against many types of crimes. And he defended the investigation last month in Portland, Ore., in which a young Somali-American man, Mohamed Osman Mohamud, 19, was arrested after law enforcement agents said he tried to trigger what he thought was a car bomb at a Christmas tree-lighting ceremony.

“I make no apologies for the how the F.B.I. agents handled their work in executing the operation that led to Mr. Mohamud’s arrest,” Mr. Holder said. “Their efforts helped to identify a person who repeatedly expressed his desire and intention to kill innocent Americans.”

He added: “But you also have my word that the Justice Department will — just as vigorously — continue to pursue anyone who would target Muslims, or their houses of worship.”

Despite the attorney general’s reassurances, some in attendance were deeply concerned by the federal government’s ongoing undercover sting operations.

“I grew up during the civil rights era and I’m aware how the civil rights community was infiltrated by provocateurs and agents who sought to undermine the legitimate struggles of the movement,” said Abu Qadir Al-Amin, 60, an African-American imam from Vallejo, Calif. “So my antennae are up and I try to educate the Muslim community so that they don’t put themselves in a vulnerable position if someone comes along suggesting they do something illegal.”

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WikiLeaks and the Espionage Act

WL Central reports:

Today, Jennifer Robinson, one of the lawyers for Julian Assange, told The Guardian that the US government may be about to press charges against Julian Assange under the Espionage Act. She said that the legal team had heard from “several different US lawyers rumours that an indictment was on its way or had happened already, but we don’t know”. Ms Robinson told ABC News that “Our position of course is that we don’t believe it (the Espionage Act) applies to Mr. Assange and that in any event he’s entitled to First Amendment protection as publisher of Wikileaks and any prosecution under the Espionage Act would in my view be unconstitutional and puts at risk all media organizations in the U.S.”

Rumours about the possibility of Julian Assange having been indicted by a grand jury, whose proceedings are secret, have been circulating for a while. The Christian Science Monitor had a few days ago quoted Stephen Vladeck, an expert in national security law at American University, who said that an empaneled grand jury could have already been considering the case. “We wouldn’t know what they’re doing until the whole thing is concluded,” he said. The Monitor also quoted CNN legal expert Jeffrey Toobin, who said “I would not be at all surprised if there was a sealed arrest warrant currently in existence.”

Prominent civil rights attorney Harvey A. Silverglate, who worked on the Pentagon Papers case, also raised the possibility in an interview with NECN, while also pointing out that prosecution would be extremely difficult, and for many reasons not in the interest of the United States government.

As we previously covered, the legal consensus appears to be that a prosecution under the Espionage Act would be both difficult and dangerous for the United States, notably with regards to First Amendment protections (also see: EFF, ACLU.)

The US Congressional Research Service published on December 6 a report titled “Criminal Prohibitions on the Publication of Classified Defense Information” [PDF]:

This report identifies some criminal statutes that may apply, but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions. (emphasis ours)

The report’s conclusion states: “Thus, although unlawful acquisition of information might be subject to criminal prosecution with few First Amendment implications, the publication of that information remains protected.”

A new poll finds that only 31% of Americans believe that the publication of secrets is protected by the First Amendment.

This implies that most Americans have unquestioningly swallowed the line that the boundaries that circumscribe freedom for the press are those defined by the US government. The government defines the terms of national security and the press must not challenge those definitions.

In other words, the press should have as much freedom as the government sees fit.

In other words, the press can enjoy the same amount of freedom that a well-trained dog enjoys once it has learned to never strain at its leash.

In other words, most of the Americans who say that America is at war in order to protect our freedom, see that freedom as being akin to the freedom of a domesticated animal.

We know how to bark, how to wag our tails and how to catch treats.

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How WikiLeaks turned the First Amendment into a ‘problem’

First Amendment attorney Floyd Abrams says: “WikiLeaks may just be the price we pay for freedom of the press in this country.”

Why not: “WikiLeaks demonstrates the value of the First Amendment”?

After all, what’s the good of having a free press when journalists so willingly serve the interests of the establishment? If the Fourth Estate had not turned itself into a fourth branch of government, WikiLeaks would have little reason to exist — or at least, little reason to be challenging the authority of the US government.

Freedoms not exercised will easily be taken away.

Time reports:

Thanks to nearly a century of cases dealing with the clash between national security and the freedom of the press, the Constitution provides enormous protection for publishers of state secrets. Those who leak the secrets in the first place — government officials, even soldiers, for instance — can and are prosecuted, such as Army private, Bradley Manning, now sitting in a military prison after having been charged with illegally downloading secret files amid suspicions that he gave them to WikiLeaks.

Putting someone like Assange in jail for publishing documents he did not himself steal, on the other hand, is exactly the kind of thing that First Amendment makes difficult. “From everything we’ve seen, [Manning] was merely responding to the notion that Assange might publish the cables,” former CIA inspector general Frederick P. Hitz told TIME. “There’s nothing to show that Assange played an active role in obtaining the information.” He conceded that the leaks had been tremendously damaging, but added “I don’t see any easy effort there” in pursuing charges.

Holder has said the government will explore whether Assange could be charged with a form of theft since the records had been stolen, though such a course is fraught will obstacles, given that the files are digital copies of government records. Holder said too the government will consider whether Assange might be guilty of conspiring somehow with Manning, or went beyond the traditional role of publisher by acting as a kind of broker in dissemenating the files to newspapers around the world. What worries famed First Amendment attorney Floyd Abrams is that if the government stretches to get around the Constitution to charge Assange, it may end up damaging the press freedoms enjoyed by every publisher. Nobody should applaud Assange, Abrams told TIME, but trying to remedy the harm he caused could easily leave the country worse off. “WikiLeaks may just be the price we pay for freedom of the press in this country,” Abrams said.

The New York Times reports on the administration’s ongoing effort to find a legal trap in which they might snare Assange:

Justice Department officials have … examined whether Mr. Assange and WikiLeaks could be charged with trafficking in stolen government property.

But scholars say there might be legal difficulties with that approach, too, because the leaked documents are reproductions of files the government still possesses, not physical objects missing from its file cabinets. That means they are covered by intellectual property law, not ordinary property law.

“This is less about stealing than it is about copying,” said John G. Palfrey, a Harvard Law School professor who specializes in Internet issues and intellectual property.

Intellectual property law criminalizes the unauthorized reproduction of certain kinds of commercial information, like trade secrets or copyrighted music, films and software files. But those categories do not appear to cover government documents, which by law cannot be copyrighted and for which there is no ordinary commercial market.

Mr. Assange has received leaks of private-sector information as well. He has indicated, for example, that his next step might be to publish a copy of the contents of a hard drive belonging to an executive at a bank — apparently, Bank of America.

If he does so, some of the problems associated with trying to find a way to prosecute him for distributing leaked government documents could disappear. The works of a person in the private sector are automatically copyrighted, and bank documents could be deemed trade secrets.

“If you had large-scale dissemination of a private-sector company’s records, there might be some kind of argument there similar to commercial espionage,” said James Boyle, a Duke University law professor who specializes in intellectual property and public-domain issues.

There would still be obstacles. For example, Mr. Assange could claim that his distribution of the files was allowable under the “fair use” exception to copyright law and that it was not for financial gain. Still, “fair use” does not allow wholesale reproduction, and prosecutors could argue that his organization was raising money from its activities.

Even so, Mr. Boyle cautioned, intellectual property law is not well designed to prosecute what WikiLeaks is doing.

“The reason people are upset about this is not about commercial theft or misusing the fabulous original expressions of U.S. diplomats,” Mr. Boyle said. “I think it is the wrong tool. You go after Al Capone for tax evasion rather than bootlegging — fine. But this is a bridge too far.”

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Latest graduate in FBI’s terrorist training program

Since it’s difficult to identify and capture terrorists, the FBI seems to have concluded that an effective counterterrorism program can only work if they first find potential terrorists, coach them and then catch them. It’s a bit like sports hunting for those whose pride in displaying a trophy is undiminished by the fact that the animal was raised to be shot.

Associated Press reports:

A 21-year-old man charged with trying to blow up a military recruiting center briefly hesitated when he heard about a federal sting operation that nabbed an alleged terrorist in Oregon last month but decided to keep going with his plan, authorities said.

Antonio Martinez, a naturalized U.S. citizen who goes by the name Muhammad Hussain after recently converting to Islam, faces charges of attempted murder of federal officers and attempted use of a weapon of mass destruction.

He told an informant working with the FBI he thought about nothing but jihad and wasn’t deterred even after a Somali-born teenager was arrested in Portland, Ore., the day after Thanksgiving in a sting, court documents released Wednesday showed.

The Oregon suspect intended to bomb a crowded downtown Christmas tree-lighting ceremony. But – like Martinez – the people he’d been communicating with about the plot were with the FBI. Martinez wondered if he was headed down a similar path, documents say.

After hearing about the Oregon case, Martinez was uneasy and called the informant demanding to know who he was, according to court documents.

“I’m not falling for no b.s.,” he told the informant. He said he still wanted to go ahead, but the informant told him to think about it overnight and call the next day, which Martinez did.

In the following days, Martinez reiterated his support for the plan several times, documents show, at one point reassuring the informant that he didn’t feel pressured to carry it out: “I came to you about this, brother.”

The bomb he’s accused of trying to detonate was fake and had been provided by an undercover FBI agent. It was loaded into an SUV that Martinez parked in front of the recruiting center, authorities said, and an FBI informant picked him up and drove him to a nearby vantage point where he tried to set it off.

“There was never any actual danger to the public during this operation this morning,” U.S. Attorney Rod J. Rosenstein said Wednesday. “That’s because the FBI was controlling the situation.”

The FBI’s dubious approach to counterterrorism was highlighted earlier this week in a Washington Post report on a convicted forger named Craig Monteilh who became an FBI informant and is now suing the agency.

The Islamic Center of Irvine in Southern California was a target of Monteilh’s operations.

In the Irvine case, Monteilh’s mission as an informant backfired. Muslims were so alarmed by his talk of violent jihad that they obtained a restraining order against him.

He had helped build a terrorism-related case against a mosque member, but that also collapsed. The Justice Department recently took the extraordinary step of dropping charges against the worshiper, who Monteilh had caught on tape agreeing to blow up buildings, law enforcement officials said. Prosecutors had portrayed the man as a dire threat.

Compounding the damage, Monteilh has gone public, revealing secret FBI methods and charging that his “handlers” trained him to entrap Muslims as he infiltrated their mosques, homes and businesses. He is now suing the FBI.

Officials declined to comment on specific details of Monteilh’s tale but confirm that he was a paid FBI informant. Court records and interviews corroborate not only that Monteilh worked for the FBI – he says he made $177,000, tax-free, in 15 months – but that he provided vital information on a number of cases.

Some Muslims in Southern California and nationally say the cascading revelations have seriously damaged their relationship with the FBI, a partnership that both sides agree is critical to preventing attacks and homegrown terrorism.

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Truth in chains

Chris Floyd writes:

Well, they got him at last. WikiLeaks founder Julian Assange, the target of several of the world’s most powerful governments, turned himself into British authorities today and is now at the mercy of state authorities who have already shown their wolfish – and lawless – desire to destroy him and his organization.

It has been, by any standard, an extraordinary campaign of vilification and persecution, wholly comparable to the kind of treatment doled out to dissidents in China or Burma. Lest we forget, WikiLeaks is a journalistic outlet – just like The New York Times, the Guardian and Der Spiegel, all of whom are even now publishing the very same material – leaked classified documents — available on WikiLeaks. The website is also a journalistic outlet just like CNN, ABC, CBS, Fox and other mainstream media venues, where we have seen an endless parade of officials – and journalists! – calling for Assange to be prosecuted or killed outright. Every argument being made for shutting down WikiLeaks can – and doubtless will – be used against any journalistic enterprise that publishes material that powerful people do not like.

And the leading role in this persecution of truth-telling is being played by the administration of the great progressive agent of hope and change, the self-proclaimed heir of Martin Luther King and Mahatma Gandhi, the winner of the Nobel Peace Prize, Barack Obama. His attorney general, Eric Holder, is now making fierce noises about the “steps” he has already taken to bring down WikiLeaks and criminalize the leaking of embarrassing information. And listen to the ferocious reaction of that liberal lioness, Sen. Dianne Feinstein, who took to the pages of Rupert Murdoch’s Wall Street Journal to call for Assange to be put in prison – for 2,500,000 years:

When WikiLeaks founder Julian Assange released his latest document trove—more than 250,000 secret State Department cables—he intentionally harmed the U.S. government. The release of these documents damages our national interests and puts innocent lives at risk. He should be vigorously prosecuted for espionage.

“The law Mr. Assange continues to violate is the Espionage Act of 1917. That law makes it a felony for an unauthorized person to possess or transmit “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.” … Importantly, the courts have held that “information relating to the national defense” applies to both classified and unclassified material. Each violation is punishable by up to 10 years in prison.

So there you have it. Ten years for each offense; 250,000 separate offenses; thus a prison term of 2.5 million years. Naturally, tomorrow the same newspaper will denounce Feinstein for being such a namby-pamby terrorist-coddling pinko: “Why didn’t she call for Assange to be torn from limb to limb by wild dogs, as any right-thinking red-blooded American would do!?”

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The FBI successfully thwarts its own terrorist plot

Glenn Greenwald writes:

The FBI is obviously quite pleased with itself over its arrest of a 19-year-old Somali-American, Mohamed Osman Mohamud, who — with months of encouragement, support and money from the FBI’s own undercover agents — allegedly attempted to detonate a bomb at a crowded Christmas event in Portland, Oregon. Media accounts are almost uniformly trumpeting this event exactly as the FBI describes it. Loyalists of both parties are doing the same, with Democratic Party commentators proclaiming that this proves how great and effective Democrats are at stopping The Evil Terrorists, while right-wing polemicists point to this arrest as yet more proof that those menacing Muslims sure are violent and dangerous.

What’s missing from all of these celebrations is an iota of questioning or skepticism. All of the information about this episode — all of it — comes exclusively from an FBI affidavit filed in connection with a Criminal Complaint against Mohamud. As shocking and upsetting as this may be to some, FBI claims are sometimes one-sided, unreliable and even untrue, especially when such claims — as here — are uncorroborated and unexamined. That’s why we have what we call “trials” before assuming guilt or even before believing that we know what happened: because the government doesn’t always tell the complete truth, because they often skew reality, because things often look much different once the accused is permitted to present his own facts and subject the government’s claims to scrutiny. The FBI affidavit — as well as whatever its agents are whispering into the ears of reporters — contains only those facts the FBI chose to include, but omits the ones it chose to exclude. And even the “facts” that are included are merely assertions at this point and thus may not be facts at all.

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Would-be spies should approach Israeli consulates with caution

In June 2006, Elliot Doxer, an employee at an internet company in Boston, sent an email to a foreign consulate. “I am a Jewish American who lives in Boston,” he allegedly wrote. “I know you are always looking for information and I am offering the little I may have.” He also wrote that he wanted “to help our homeland and our war against our enemies.”

Let’s take a wild guess: he was referring to the Jewish homeland and communicating with the Israeli consulate. That’s the assumption made by the Jerusalem Post and just about everyone else — even though court documents only refer to “Country X.”

As the victim of an FBI sting operation, Doxer now faces the prospect of 20 years in jail and a $250,000 fine if convicted.

But here’s the interesting bit. In response to Doxer’s approach, the consulate informed US law enforcement officials and then assisted the FBI with its investigation.

So what’s a would-be spy to do?

Don’t trust your local Israeli consulate?

Don’t ask for compensation?

Make sure you have extremely valuable intelligence?

Acquire Israeli citizenship before you do anything else?

The next Jonathan Pollard might now be reconsidering his options.

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The rock upon which our nation no longer rests

In a landmark case, the first trial of a former Guantánamo detainee, Judge Lewis A. Kaplan of United States District Court in Manhattan made a ruling that presents a major setback for the Department of Justice. He barred the key witness from testifying because he had been identified and located through torturing the accused, Ahmed Khalfan Ghailani, who was being held in a secret prison by the CIA.

Kaplan explained his decision in this way:

The Court has not reached this conclusion lightly. It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.

At face value, this sounds like one of those rare feel-good moments in the post 9/11 era when someone who has sworn to uphold the Constitution took that responsibility very seriously.

“… the Constitution is the rock upon which our nation rests.” I imagine Judge Kaplan took satisfaction in crafting that sentence. It’s good.

But just in case anyone might be alarmed that the innocent-until-proven-guilty Ghailani might end up being acquited, the judge was eager to pacify such fears.

[H]is status as an “enemy combatant” probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.

So is Ghailani on trial to determine his innocence or guilt, or simply to decide on the location of his prison cell?

Isn’t that the direction in which fear and danger beckon?

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Idiocy holds sway on the Supreme Court and inside the Obama administration

It seems hard to fathom but the evidence is now overwhelming: if someone repeats the word “terrorist” often enough their brain will become functionally useless.

Consider the Supreme Court’s decision on Monday in support of the Obama administration’s sweeping definition of “material support” as applied to so-called Foreign Terrorist Organizations (FTO) — a designation applied by the State Department.

If an NGO such as the Humanitarian Law Project (HLP) wants to train a group such as the Kurdistan Workers’ Party (PKK) on how to use humanitarian and international law to peacefully resolve disputes, then the HLP risks criminal prosecution. Why? Such training could help legitimize the PKK and also free up resources that it can dedicate to its terrorist activities.

Solicitor General Elena Kagan (who is nominated to become a Supreme Court Justice) argued the case for the Obama administration.

Kay Guinane described the decision:

The Court ruled that even though pure speech is entitled to a high level of constitutional scrutiny, it would forgo such scrutiny and defer to Congress and the executive branch, which asserted unsupported, theoretical findings that support aimed at countering violence can somehow indirectly support violence. The Court’s reasoning was that the matter involves national security.

With its overly deferential approach, the Court failed to fulfill its responsibilities in the checks-and-balances system that keeps our democracy healthy. If it had looked behind the broad generalizations cited by the government, it would have seen there are no facts either in the Congressional Record or elsewhere that support the Congressional or State Department “findings.” And even if there are some circumstances where conflict mediation and human rights training can be co-opted to support violence, it is not inevitable that it will happen in all cases.

For an obvious example of the fault in the findings, one need look no further than the Good Friday Accords that brought a lasting peace to Northern Ireland for the first time in more than eight centuries. For years, non-governmental organizations (NGOs) had worked to bring violent factions of Catholics and Protestants to the bargaining table. Their work behind the scenes was instrumental in persuading those groups — “terrorists” in the eyes of most of their captive civilian populations, as well as the governments seeking to disarm them — to put down their weapons and negotiate a peaceful resolution to 850 years of violence.

If the “material support” law had been in place, as authorized by the Supreme Court today, those organizations would have been criminals. And the people of Northern Ireland would likely still be victims of sectarian violence that only a very few supported.

“Orwellian” doesn’t begin to describe a law that makes it a crime to promote peaceful conflict resolution.

If the administration actually intends to uphold the law in the way they argue it should be applied, then the Israeli-Palestinian conflict can be expected to continue forever.

There is a rather broad consensus among foreign policy analysts in the US and Europe, that Hamas, a designated FTO, has far too much grassroots political support among ordinary Palestinians for the organization to be destroyed. Neither Israel’s war on Gaza nor it’s internationally supported siege of Gaza, succeeded in bringing the Islamist organization and democratically-elected government to its knees.

If the Obama administration wants to revive the Middle East peace process, sooner or later Hamas will have to be involved. It’s hard if not impossible to anticipate that those involved in the initial efforts to open dialogue with Hamas can avoid falling foul of the broad definition of “material support” that the Supreme Court has just upheld.

The Obama administration told the Supreme Court that the United States is engaged in an effort to “delegitimize and weaken” groups such as Hamas, yet it would behoove Washington and democratic governments everywhere to remember where political legitimacy springs from: not idiotic Supreme Court rulings, but the will of the people — and that includes the Palestinians.

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FBI investigate peace activist

At a recent protest in San Francisco, Zionists hurled insults at peace activists and also issued threats such as this:

You’re all being identified, every last one of you…we will find out where you live. We’re going to make your lives difficult..we will disrupt your families…

It would appear that there are Zionists in Austin, Texas, who share the same sentiment and have decided to enlist the services of the FBI in order to pursue their political agenda.

What other plausible explanation can there be as to why the FBI came to question the mother of five shown in this video? She is a part-time registered nurse and part-time peace activist whose only form of “suspicious” behavior is that she has participated in protests calling for justice in Palestine.

(h/t Mondoweiss)

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