Monday, June 24, 2013

Priorities and the Snowden leaks

The Edward Snowden case is obviously a big deal. Secretary of State John Kerry is rattling the diplomatic sabres with Russia and China over it, as Spiegel Online reports in Affäre um Whistleblower Snowden: Kerry droht China und Russland 24.06.2013.

I was glad that Nancy Pelosi caught some static at Netroots Nation this weekend over Edward Snowden and the domestic spying programs.

And I take it for granted that Snowden broke the classification laws. And presumably even his most passionate admirers recognize that he did so. Snowden himself certainly seems to believe he did.

I would qualify that only to say that in our post-9/11 secrecy state, the scope of the classification laws haven't been adequately tested in the court system.

Daniel Ellsberg isn't a fan of the current domestic espionage program. And in Ellsberg: A Coup Against the Constitution 06/15/2013 he also addresses some of the real Constitutional issues involved:

But what Snowden disclosed was a confirmation of a massive domestic surveillance program unsuited to a democratic society and ultimately incompatible with it. Some of those who have regarded Snowden and his revelations with a jaundiced eye argue that we all knew that something like this was going on anyway. Gene Lyons, for instance, who has been paying close attention to this story, writes in Cyber Warfare Beats The Other Kind 06/19/2013:

Privacy in the 18th century sense vanished with the Internet, and it’s never coming back. It’s childish to think otherwise.

Yesterday my wife dropped my binoculars, knocking them out of whack. Before I figured out how to fix them I priced a new pair on Amazon. This morning, Facebook sent me an advert for Chinese-made Bushnells costing far less than the originals. By tomorrow, they’ll be back to selling me patent medicines somehow involving pretty women with preposterously large breasts. They don’t know that I suffer from maladies their "weird secrets" purport to cure, but they definitely know my age and gender.

MasterCard recently shut me down because their computer algorithm correctly deduced that a guy who spends most of his money buying cattle feed in Arkansas probably wasn’t buying a huge HDTV in Mexico City. Amazon knows that I've read all the Henning Mankell "Kurt Wallender" novels and thinks I may have a thing for Scandinavian murder mysteries.
But Amazon is following your purchases to sell you more stuff. Amazon can't put you in jail, or hold you in an isolation cell for months or years as an "enemy combatant."

If Amazon slips up and lets it slip publicly that you're ordering a lot of novels that fans of Fifty Shades of Gray are also ordering, that might be embarrassing. If you work for, say, Chick-Fil-A, it might even get you fired. But if you get fingered by the government as a Terrorist, that's a whole different set of problems. Does our whiz-bang national security bureaucracy sometimes make serious mistakes on these things? You can ask Steven Hatfill about that. (David Willman, Anthrax subject receives payout Los Angeles Times 06/28/2013)

The fact that computer technology allows a bloated, heavily privatized national security state to collect and store vast amounts of data on everybody means that privacy concerns and the need for privacy protection are more urgent, not less. There is an enormous difference Amazon annoying you with pop-up ads and the FBI or NSA trying to turn you into the next Steven Hatfill based on some flawed algorithm based on your patterns of phone calls and e-mails. One of those things has far more serious consequences for the person on the receiving end than the other.

Nor am I persuaded by the argument Pelosi and other Obama defenders are making of the massive domestic surveillance program, that it was bad under Cheney and Bush because they were doing it illegally, but Congress legalized what they doing and Obama is getting a vague warrant from a secret court and so now it's all good.

No, it's not. And whether it's legal or not also hasn't been tested adequately in court, because the Obama Administration has used the secrecy of the programs themselves to block court challenges to their legality and constitutionality.

Digby is dead right on this point (Let's open this thing up already Hullabaloo 06/21/2013):

One of the most laughable comments the NSA program supporters have been making is the one insisting that the FISA court is "transparent." It's rulings are secret as are the government's interpretations of the law and those rulings. If that's what we call due process these days, we might as well just officially institute a Star Chamber and call it a day.
After the Cheney-Bush Administration, the most urgent Constitutional task Obama had was to restore the rule of law and prosecute torture perpetrators. Instead, he's practiced a Look Forward Not Backward non-prosecution policy for high government officials who break the law on the pretense they are doing so for National Security Of The Homeland and for wealthy bankers who crashed the world financial system and rip off millions of people. He hasn't restored the rule of law, he's reinforced the trend toward blatant class justice.

And it's clear that the Obama Administration has been more aggressive than any before on pursuing whistleblowers and leakers. Marisa Taylor and Jonathan Landay give us a glimpse of how extreme it has become in Obama's crackdown views leaks as aiding enemies of U.S. McClatchy 06/20/2013:

President Barack Obama's unprecedented initiative, known as the Insider Threat Program, is sweeping in its reach. It has received scant public attention even though it extends beyond the U.S. national security bureaucracies to most federal departments and agencies nationwide, including the Peace Corps, the Social Security Administration and the Education and Agriculture departments. It emphasizes leaks of classified material, but catchall definitions of "insider threat" give agencies latitude to pursue and penalize a range of other conduct.

Government documents reviewed by McClatchy illustrate how some agencies are using that latitude to pursue unauthorized disclosures of any information, not just classified material. They also show how millions of federal employees and contractors must watch for "high-risk persons or behaviors" among co-workers and could face penalties, including criminal charges, for failing to report them. Leaks to the media are equated with espionage.

"Hammer this fact home ... leaking is tantamount to aiding the enemies of the United States," says a June 1, 2012, Defense Department strategy for the program that was obtained by McClatchy.
And far from rethinking their draconian approach, Taylor and Landay report that the Administration takes the latest revelations as evidence they need to double-down in their drive against leakers: "The Obama administration is expected to hasten the program's implementation as the government grapples with the fallout from the leaks of top secret documents by Edward Snowden."

Charlie Pierce explains some of the obvious problems with this kind of official paranoia in The Snowden Effect, Special Sunday Edition Esquire Politics Blog 06/23/2013:

You want "Nixonian"? This, right here, this is Nixonian, if Nixon had grown up in East Germany. You've got the entire federal bureaucracy looking for signs of "high-risk persons or behaviors" the way Nixon sent Fred Malek out to count the Jews. You've got created within the entire federal bureaucracy a culture of spies and informers, which will inevitably breed fear and deceit and countless acts of interoffice treachery. (Don't like your boss at the Bureau Of Land Management? Hmm, he looks like a high-risk person. Tell someone.)
Then there is problem of officially-directed but still illegal leaks of classified information for purpose of making the Administration look good.

Which brings me back to Secretary of State Kerry's huffing and puffing at Russia and China. If enforcing the rule of law on Edward Snowden is important enough to add a significant new grievance to our relations with those two countries, then the torture crimes of the Cheney-Bush Administration are important enough to prosecute. Not only are they far more significant in terms of the rule of law. The Torture Convention Treaty signed by St. Reagan and approved by the Senate thereby becoming the law of the land requires it. So do other American laws. And if a leak like Snowden's that brings accountability to a massive domestic surveillance program that is a real threat to democratic government - and to sane law-enforcement and defense priorities - is serious enough to prosecute, so are leaks by Administration officials designed to make it look good.

Like, for instance, the one reported on by Mark Hosenball in Exclusive: Did White House "spin" tip a covert op? Reuters 05/18/2012.

See also David Sirota's Why shouldn't David Gregory be charged with a crime? Salon for some relevant discussion of this question. Put another way, if someone violates the classification laws and regulations, that would pretty obviously be grounds for discipline or dismissal from their positions and revocation or adjustment of their classification clearances.

But unless there is clear venal motive, i.e, selling information for money, or identifiable damage to security beyond a vague classification-is-sacred assumption, it's a matter of legitimate discretion whether they should be prosecuted for a crime. But since the Obama Administration is making a practice of going after high-profile leakers like Snowden for espionage, then the wink-and-a-nod attitude toward links of classified information that support the White House's PR efforts are all the more egregious.

Also, as much as we might like to think so, the world does not revolve around American Exceptionalism. Arrogance and overreach can produce blowback, which could be part of what is going on with Russia in the Snowden case: Marcy Wheeler, Remember How Angry Russia Is about Viktor Bout Emptywheel 06/24/2013.

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