Amy Goodman, award-winning journalist and host of Democracy Now, has been facing an outrageous arrest warrant in North Dakota for "criminal trespass" since early September. The charges are a result of her merely doing her job as a reporter and covering police violence against oil pipeline protesters in North Dakota.
Gawker.com, the pioneering and controversial media blog, officially died yesterday. It was killed by billionaire Peter Thiel in his successful quest to bankrupt Gawker Media Group through a series of lawsuits he funded – most notably wrestler Hulk Hogan, who sued over the publication of a portion of his sex tape four years ago. (more…)
Today, The Intercept published leaked documents that contain the FBI's secret rules for targeting journalists and sources with National Security Letters (NSLs)—the controversial and unconstitutional warrantless tool the FBI uses to conduct surveillance without any court supervision whatsoever.
In a huge victory for press freedom, New Zealand's High Court has ruled decisively in favor of independent journalist Nicky Hager in his case against the New Zealand government for raiding his house and seizing his family's possessions in 2014.
Today Freedom of the Press Foundation is proud to announce a new crowd-funding campaign that will fund local journalists around the United States to file Freedom of Information Act (FOIA) and other transparency lawsuits aimed at uncovering video evidence of police misconduct and brutality against unarmed men and women. You can donate to the fund here.
In the past few days there have been a flurry of stories about the Russian plane that crashed in the Sinai peninsula, which investigators reportedly think may have been caused by a bomb. Notably, anonymous US officials have been leaking to journalists that they believe ISIS is involved, and it's a perfect illustration of the US government's rank hypocrisy when it comes to the Edward Snowden disclosures.
Whistleblower Chelsea Manning, who is currently serving an unjust thirty-five year jail sentence and who has already been tortured under US military supervision, is now being threatened with "indefinite solitary confinement" for alleged infractions that are so minor it's actually hard to believe. (more…)
Today the Senate passed a version of the USA Freedom Act, a bill touted by its authors as surveillance reform that will end the NSA's mass, suspicionless collection of Americans' personal data. Given that parts of the Patriot Act expired on June 1st, and that the government is pretending the expiration is a "crisis" rather than an opportunity, President Obama is expected to sign the bill as soon as possible.
While the bill has many significant flaws, the USA Freedom Act vote is also historic: it's the first time since the 1970s that Congress has indicated its intention to restrict the vast powers of intelligence agencies like the NSA, rather than exponentially expand them. It also shows the power that investigative journalism and brave whistleblowing can have on even the most entrenched government interests. Two years ago, debating these modest changes would've been unthinkable, and it is absolutely a vindication for Edward Snowden.
Unfortunately, the bill is also woefully inadequate and largely symbolic, and Congress would've been better off letting Section 215 of the Patriot Act expire permanently. The USA Freedom Act supposedly bans bulk collection of phone records or any other private records, and we certainly hope it actually does. But its provisions are vague and confusing, leading many legal experts to believe they could be re-interpreted in secret—by NSA lawyers with a history of warping the common definitions of ordinary words beyond recognition—and could lead the FISA court to continue to allow the NSA to collect large quantities of Americans' data in secret. (The administration will shamefully now re-start the phone program that expired on Monday for six months, as allowed under the new law's "transition" period.)
The ultra-secret FISA court, a Kafkaesque nightmare for civil liberties, also gets to keep many of its worst features, with just minor changes around the edges. Such an anathema to democracy should be dismantled entirely.
The USA Freedom Act also does not touch on two of the NSA's most powerful and controversial tools: the FISA Amendments Act and Executive Order 12333, which have been used to scan untold billions of emails coming in and out of the United States, and give the agency free rein to spy on 95% of the world's population with virtually no restrictions.
And perhaps most shamefully, given that Congress never would've even had this debate without Edward Snowden, the bill does nothing for whistleblowers who can be prosecuted as spies under the Espionage Act for speaking to journalists and telling the American public the truth.
As Snowden himself said two weeks ago, we hope the USA Freedom Act is just the beginning of Congress' reform of the NSA, and not the end. And we are reminded that it took more than five years for the Church Committee's intelligence reforms to make their way through Congress in the 1970s.
It's also important to remember that given the dysfunction in Congress on all subjects, plus the grip the intelligence agencies have over the legislative committees that supposedly oversee them, new laws constraining the NSA were only ever going to be one part of a much larger picture. Far more substantive changes have happened on the individual level, as well as at many of the nation's largest tech companies, and in the courts.
Encryption is now a legitimate bulwark against mass surveillance by any government. Open-source and free software projects are both getting easier to use for ordinary users and are proliferating in numbers. Once collaborators with the NSA, big tech companies have also taken a far more adversarial position since their secret capitulations were exposed. These companies have at least partially responded to demand from citizens to protect their communications with encryption that can prevent intelligence agencies from spying on innocent people.
While companies like Apple have made great strides by encrypting iPhones by default, a lot more needs to be done to make sure end-to-end encryption—whether we are emailing, texting, or calling each other—becomes the norm in 21st century society. Continued pressure from the public will get us there.
Edward Snowden's leaks have also opened the door to more court challenges. For years the government was able to hide behind procedural maneuvers, like invoking standing or the state secrets privilege, to prevent judges from ruling on the constitutionality of the programs. As the Second Circuit's landmark opinion ruling NSA mass surveillance of Americans illegal, this tactic is slowly crumbling. While it remains an uphill climb for anyone to challenge the government's actions, whistleblowers like Snowden and others are breaking down that wall.
We hope that all of these actions–in Congress, in the courts, and from the public—-will continue to become stronger and bring permanent reform in the months and years to come.
Trevor Timm is a co-founder and the executive director of the Freedom of the Press Foundation. He is a writer, activist, and lawyer who specializes in free speech and government transparency issues. His work has appeared in The Atlantic, Al Jazeera, Foreign Policy, The Guardian, Harvard Law and Policy Review, Politico, PBS MediaShift and Salon. Trevor formerly worked as an activist at the Electronic Frontier Foundation. Before that, he helped the longtime General Counsel of The New York Times, James Goodale, write a book on the Pentagon Papers and the First Amendment. In 2013, he received the Hugh Hefner First Amendment Award for journalism.
In the midst of the last-minute Congressional debate about whether to re-authorize Patriot Act Section 215, the Justice Department Inspector General (IG) released a long awaited report today on how the FBI has used (and abused) Section 215 for the past few years. Unfortunately, the report is heavily redacted so the law's use remains largely shrouded in secrecy, but one passage in the IG report is particularly revealing: It directly contradicts what Attorney General Loretta Lynch said just today about Section 215's supposed importance. (more…)
Over the weekend, the US government announced that special forces soldiers entered Syria to conduct a raid that killed an alleged leader of ISIS, Abu Sayyaf. In the process, anonymous US officials leaked classified information to the New York Times that's much more sensitive than anything Edward Snowden ever revealed, and it serves as a prime example of the government's hypocrisy when it comes to disclosures of secret information.
Former CIA director David Petraeus received his sentence today for the sweetheart plea deal he struck with the Justice Department after he was discovered to have leaked highly classified information to his biographer and lover Paula Broadwell. As was widely anticipated, the celebrated general received no jail time and instead got only two-years probation plus a $100,000 fine. (As journalist Marcy Wheeler has pointed out, that's less than Petraeus receives for giving one speech.)
The gross hypocrisy in this case knows no bounds. At the same time as Petraeus got off virtually scot-free, the Justice Department has been bringing the hammer down upon other leakers who talk to journalists—sometimes for disclosing information much less sensitive than Petraeus did. It's worth remembering Petraeus' leak was not your run-of-the-mill classified information; it represented some of the most compartmentalized secrets in government. Here's how the original indictment described the eight black books Petraeus handed over to Paula Broadwell:
The books "collectively contained classified information regarding the identifies of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings… and discussions with the president of the United States."
While Petraeus' supporters claim none of this information was never released to the public after he leaked it to Broadwell, that does not matter in leak cases. You can just ask former CIA officer John Kiriakou, who disclosed the names of two supposedly undercover CIA officers to a researcher. The names were never published, but Kiriakou still got thirty months in jail.
Let's also not forget that David Petraeus lied to FBI officials when they questioned him about his leak. For a reason the Justice Department never explained, he wasn't charged for lying at all. As the New York Times pointed out today, "Lying to federal agents is a felony that carries a sentence of up to five years in prison. The Justice Department has used that charge against terrorists, corrupt politicians and low-level drug dealers." Just apparently not former CIA directors.
Petraeus' deal comes just days after federal prosecutors recommended another sentence to a convicted leaker who worked for the same Central Intelligence Agency—Jeffrey Sterling. In Sterling's case the prosecutors are calling for twenty-four years of prison time. Sterling was convicted of leaking information to Pulitzer Prize-winning reporter James Risen about a botched CIA mission that occurred almost two decades ago. The lawyer for former State Department official Stephen Kim, currently in jail for leaking innocuous information to Fox News' James Rosen, has also objected to the "profound double standard" in Petraeus' case versus Kim's.
To be fair, the rank-and-file at the FBI and Justice Department seem to recognize how egregious the hypocrisy surrounding Petraeus' case is: while Attorney General Eric Holder himself signed off on the lenient deal, he reportedly did so over strenuous objections from FBI and DOJ officials.
Ultimately, no one should be charged under the Espionage Act for leaking information to journalists, but if the government is going to bring charges against low-level officials, it has a responsibility to do so against high-ranking generals as well. And actually, the Justice Department's reasoning behind not seeking a trial for Petraeus is quite telling for just how unjust the Espionage Act is. As the New York Times reported:
[W]ithout a deal, the Justice Department would have faced the prospect of going to trial against a decorated war hero over a disclosure of secrets that President Obama himself said did not harm national security. Plus, a trial would require the government to reveal some of the classified information.
The Justice Department's fear about an embarrassing trial is one the most egregious aspects of Espionage Act prosecutions against leakers and whistleblowers: defendants can be found guilty even if there was no damage to national security at all. It's not one of the elements of the crime, so prosecutors don't have to prove it. By forgoing a trial because they are afraid of graymail, the government is also basically saying to future leakers "if you're going to leak classified information, make sure it's something really classified."
It's possible that Petraeus' deal was so egregious that this could be good news for other leakers. The Daily Beast's Kevin Mauer argued as much earlier today:
Petraeus's relatively light punishment will likely have lasting ramifications on future leak cases, national security lawyers said. They argue the government is cutting its own throat by offering him a more lenient sentence in the wake of harsher penalties to other leakers and creating a double standard that can be exploited by defense attorneys in future cases.
However, given the government unrelenting pursuit of Sterling, there is little chance of this having a lasting effect. Unfortunately, the Petraeus case will go down in history as one of the most blantant examples of the inherent unfairness of leak trials and the two-tiered system of justice that whistleblowers often face.