With all the attention on NSA surveillance, the Bradley Manning trial has faded a bit into the background (and it already wasn't getting nearly the coverage it deserved). And yet, this should be a reminder of why sites like Wikileaks are so important. The big revelations over the past week on NSA surveillance both came from internal leaks. And, given the Obama administration's laser-like focus on punishing anyone who leaks anything marginally embarrassing, it's not difficult to see just how hard the administration is likely to come down on whistleblower Ed Snowden for leaking this information. And yet, this information is important for the world -- and especially Americans -- to understand how the government appears to be twisting the law over and over again to expand their ability to spy on everyone.

As the Bradley Manning trial officially kicks off today, it's interesting to see famed Constitutional scholar and Harvard professor Laurence Tribe speak out against the case. As The Guardian notes, Tribe taught Constitutional Law to President Obama when he was in law school.

Laurence Tribe, a Harvard professor who is considered to be the foremost liberal authority on constitutional law in the US and who taught the subject to President Barack Obama, told the Guardian that the charge could set a worrying precedent. He said: "Charging any individual with the extremely grave offense of 'aiding the enemy' on the basis of nothing beyond the fact that the individual posted leaked information on the web and thereby 'knowingly gave intelligence information' to whoever could gain access to it there, does indeed seem to break dangerous new ground."

Tribe, who advised the department of justice in Obama's first term, added that the trial could have "far-reaching consequences for chilling freedom of speech and rendering the internet a hazardous environment, well beyond any demonstrable national security interest."

I know that some people have pre-convicted Manning, but the charges here are simply crazy. He's already pled guilty to certain charges, but this trial focuses on whether or not he was "aiding the enemy," which would require to show that he did this knowing that it would help Al-Qaida and [classified enemy]. The supposed "proof" of this is going to be the fact that Osama bin Laden apparently had Wikileaks documents in his compound in Pakistan. But that's ridiculous. Under that theory, anyone reporting information that terrorists found useful would be guilty of violating the Espionage Act and could face the death penalty. As others in the article note, this would create a tremendous chill on investigative reporting.

A few days ago, the former executive editor of the NY Times, Bill Keller wrote about the Bradley Manning situation, in which he discusses Manning's revelation that he originally tried to go directly to the NY Times and the Washington Post, but was ignored, leading to the decision to approach Wikileaks. Keller's piece is basically an attempt by the NY Times to rewrite history to make Keller and the NY Times feel better. I wouldn't say that Keller lies necessarily, because he might just be very, very ignorant, but there is no doubt that he blatantly misrepresents what Manning said and did.

Specifically, Keller argues first, that Manning was trying to dump all of the information he had, indiscriminately, and the wise reporters at the NY Times would have figured out what was really important: "If Manning had connected with The Times, we would have found ourselves in a relationship with a nervous, troubled, angry young Army private who was offering not so much documentation of a particular government outrage as a chance to fish in a sea of secrets." Furthermore, he argues that Manning's motivations in making his speech to the court last week somehow contradict the only other clear statement into Manning's motivations: his 2010 chat logs with Adrian Lamo that Lamo turned over to the government, leading to Manning's arrest. Those chat logs were leaked to the press, and Keller argues that Manning's reasoning for leaking the material is not clear, summarizing it as:

His political views come across as inchoate. When asked, he has trouble recalling any specific outrages that needed exposing. His cause was "open diplomacy" or — perhaps in jest — "worldwide anarchy."

Furthermore, Keller insults the many people who have supported Manning by suggesting that Manning has created his current views based on what his supporters have told him.

However, as multiple people shot back, this is simply untrue. Author Greg Mitchell points out that Keller is flat out "wrong" and that if he actually read the chat logs, Manning lays out his reasoning, which is entirely consistent with his statement in court. He points out that contrary to Manning "having trouble recalling any specific outrages," Manning has no problem doing so, pointing to examples of corruption in favor of Iraqi prime minister Maliki (rounding up dissidents who were just exercising basic free speech rights), along with the now famous Collateral Murder video. Mitchell points out that for Keller to claim that Manning had not mentioned anything specific, is simply wrong:

More from the Lamo chat log: It virtually opens with Manning saying he had seen evidence of "awful things" such as at Gitmo and Bagram. Then he mentions "criminal political dealings" and cites the "buildup to the Iraq war." He details what he saw on the "Collateral Murder" video and why he wanted it released ("I want people to see the truth"). He wants to get this and much else out (he IDs more) because it might "actually change something." As for the State Dept. cables, he hopes they will spark "worldwide discussion, debates and reforms." Yet Keller claims this was all "vague."

When Nathan Fuller, a supporter of Manning, emailed Keller about all of this, Keller doubled down and stood by his original assessment, saying nothing more than that he believed his characterization is "fair." When pressed, Keller reveals his general attitude towards Manning's supporters, claiming that they have "assembled a coherent political motivation by fishing here and there in the Lamo file." As opposed to Keller who quoted five whole words from the transcripts and took even those out of context?

Meanwhile, Daniel Ellsberg, who probably identifies with Manning more than anyone else in the world, having famously given the Pentagon Papers to the NY Times decades ago, has responded angrily to Keller (video) stating that: "It shows him as an arrogant, ignorant, condescending person. A very smart person who manages to be stupid in certain ways.... What we've heard are people like the NY Times who have consistently slandered [Bradly Manning]." Ellsberg goes on to point out that there was a ton of material that Manning had access to, but which he chose not to disclose. He first mocks Keller's description of Manning as a "boy" who was "indiscriminately dumping" files, and notes that the evidence shows otherwise:

He, personally, had access to material higher than top secret, higher than Bill Keller has ever seen.... He chose not to put out the top secret communications intelligence, to which he clearly had access. He put out only material that he felt would be embarrassing [rather than harmful], and which, three years later we can say, only was embarrassing.

You may recall that in its quixotic attempt to go after Wikileaks, the US government has been snooping through the private communications of a bunch of folks they're trying to connect to the organization, including Icelandic politician Birgitta Jonsdottir and Jacob Appelbaum, who gets detained and harassed every time he re-enters the country. All of this came to light only because Twitter actually stood up to the US government and refused to just hand over info that was requested using the obscure 2703(d) process. Twitter also got the court to allow it to reveal the existence of the order (something that every other company which has received one has kept secret). A court eventually ruled that Twitter had to hand over the requested info.

Following this, Jonsdottir, Appelbaum and one other person, Rop Gonggrijp, (represented by the ACLU and the EFF), chose not to challenge that ruling, but did appeal concerning the secrecy around the order -- asking the court to have the specific 2703(d) order unsealed -- arguing that they have the right to access judicial documents about themselves. However, last week, an appeals court rejected that appeal, and basically said that the feds can sniff through your digital data without your knowledge, and, well, too bad if you don't like it.

Even though the court did find that 2703(d) orders are "judicial records," which could make them subject to a right to access, they then claimed that, well, when the government investigates things, it should be able to do so in absolute secrecy, and who really cares about pesky little things like oversight or a right to know about it.

Subscribers' contentions fail for several reasons. First, the record shows that the magistrate judge considered the stated public interests and found that the Government's interests in maintaining the secrecy of its investigation, preventing potential subjects from being tipped off, or altering behavior to thwart the Government's ongoing investigation, outweighed those interests.

Further, we agree with the magistrate judge's findings that the common law presumption of access to § 2703 orders is outweighed by the Government's interest in continued sealing because the publicity surrounding the WikiLeaks investigation does not justify its unsealing. The mere fact that a case is high profile in nature does not necessarily justify public access.... Additionally, Subscribers' contention that the balance of interests tips in the public's favor because the Government approved the disclosure of the existence of its investigation by moving the district court to unseal the Twitter Order is adequately counterbalanced by the magistrate judge's finding that the "sealed documents at issue set forth sensitive nonpublic facts, including the identity of targets and witnesses in an ongoing criminal investigation."

The government gets to peer deeper and deeper into our lives, and we're less and less able to even know about it.

WikiLeaks currently finds itself in a difficult position. Funds are trickling in because of a questionable financial blockade against it, and Julian Assange is stuck in the Ecuadorian embassy in London. So it's understandable that it should want to take every opportunity to remind people that it is still around and keen to continue publishing highly-sensitive documents in a confidential fashion. But I do wonder if this series of tweets disclosing that Aaron Swartz was involved with WikiLeaks is the best way of doing that:

Due to the investigation into the Secret Service involvement with #AaronSwartz we have decided to disclose the following facts (1-3)

1. Aaron Swartz assisted WikiLeaks #aaronswartz (1/3)

2. Aaron Swartz was in communication with Julian Assange, including during 2010 and 2011

3. We have strong reasons to believe, but cannot prove, that Aaron Swartz was a WikiLeaks source. #aaronswartz

There are a number of issues here. First, WikiLeaks is revealing the name of one of its sources -- surely something it should never do under any circumstances if it wants to retain the confidence of future whistleblowers. Worse, it's not even sure Aaron Swartz was a contributor, but is making the claim anyway. That matters because it may encourage the US authorities to start investigating others in his circle as possible WikiLeaks contributors. At best, that could be awkward for them, and at worst, extremely dangerous given what has happened to the alleged WikiLeaks source Bradley Manning.

It's hard to see what WikiLeaks thought it would gain from making these statements, other than some quick publicity, perhaps. But that seems a very transient gain in the face of the long-term dangers it may have exposed others to. Moreover, those four tweets may also have compromised its credibility with potential sources, who must now be asking themselves whether WikiLeaks can really be trusted again.

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Earlier this year, we noted that a court in Iceland had ordered Visa to start accepting donations to Wikileaks again. There's been some cat and mouse games as the various payment processors, under pressure from US officials, cut off the site a while back. The latest, however is that the Swedish Pirate Party itself has pressed charges against Swedish banks for discriminating against Wikileaks.

The charges were filed eariler today with the Swedish Finansinspektionen, the authority which oversees bank licenses and abuse of position. This follows an earlier initiative from the Pirate Party to regulate credit card companies on the European level in order to deny them the ability to determine who gets to trade and who doesn’t.

“The blockade is a serious threat against the freedoms of opinion and expression”, says the Pirate Party’s Erik Lönroth, who has been preparing the formal charges. “It must not be up to the individual payment provider to determine which organizations are eligible for donations. At the same time, these charges will bring clarity as to whether the bank regulations of today are sufficient, or if regulations need to be tightened to protect freedom of expression.”

I don't quite understand Swedish law, so it's not entirely clear to me how the Swedish Pirate Party has standing in which to bring these charges. However, it looks like "charges" basically mean asking the relevant regulatory body to investigate whether the actions are legal. Given how much power a very small number of payment companies have over what can and cannot accept money online, it would be nice for there to be some rules against discrimination. Of course, an even better answer would be to create more services that can accept payment...

It's been a while since we checked in on Julian Assange. Last we heard, the United States had just classified Wikileaks as an "enemy of the United States," but that was all the way back in September. This, of course, was after Assange had been granted asylum in the Ecuadorian embassy in the UK. With what has to seem like the entire world crumbling down around him, I'd have to guess that Assange is keeping a low, mum's the word profile.

Mr Assange said plans to register an Australian WikiLeaks party were ''significantly advanced''. He indicated he would be a Senate candidate, and added that "a number of very worthy people admired by the Australian public" have indicated their availability to stand for election on a party ticket.

Yes, Julian Assange, currently confined to Ecuador's embassy, is going to start his own political party. While many have focused on the news that he's running for Senate, that's not actually new -- having been previously reported back in March. In case you thought you had somehow slept through news that the US had dropped its investigation of Wikileaks or that Sweden no longer wanted to extradite him, you haven't: both issues are existing issues that might, possibly, get in the way of Assange actually serving as an elected official. However, as a wider party, what would the Wikileaks party stand for?

He said a WikiLeaks party would advance WikiLeaks' objectives of promoting openness in government and politics, and it would combat growing intrusions on individual privacy.

A laudable goal, and one that might find natural allies with The Pirate Party. Still, while (as with many things Assange-related) this has the feel of a publicity stunt, there's a chance that the more interesting idea is what will happen if the Wikileaks Party can really find others to be members and run for office:

If Mr Assange were elected but he was unable to return to Australia to take up his position, a nominee would occupy a Senate seat.

So, perhaps the real goal is to have someone high profile, like Assange, spearhead the effort of building out a party focused on these issues, even if there's little chance he can actually serve. Well, that or this is another example of Assange being a genuine pain in the ass.

The NY Times, of course, was the newspaper central to the case of the Pentagon Papers. That involved a huge dump of information concerning a Pentagon study highlighting how the Johnson Administration had lied to the public and Congress concerning Vietnam. The papers were leaked to the NYT by Daniel Ellsberg. The Times proceeded to release excerpts of it along with some reporting, and eventually the entire set of documents was released publicly. Ellsberg was charged under the Espionage Act -- though eventually all the charges against him were dismissed, in part due to "gross governmental misconduct." The NYTimes was hit with an injunction against publication, and a legal fight ensued, which the NY Times eventually won. There are, of course, significant similarities with Wikileaks. Again, we're talking about a large amount of classified government documents, highlighting lies to the public by the administration, and which were leaked to Wikileaks by Bradley Manning. The documents were, at first, released in excerpts along with some reporting, and eventually the entire set of documents was released publicly. Manning has been arrested and is awaiting trial.

There have been some ongoing hearings, many of which we've covered, but some folks have noticed an oddity. The New York Times did not send a reporter. It merely ran a single AP wire story. Thankfully, the NY Times' own public editor is scolding the paper for its failure here, noting that no matter what you think of Manning or the whole Wikileaks issue:

The testimony is dramatic and the overarching issues are important.

The Times should be there.

The excuse from NYT Washington bureau chief David Leonhardt seems especially weak. Basically, saying there just isn't that much to the story:

We’ve covered him and will continue to do so. But as with any other legal case, we won’t cover every single proceeding. In this case, doing so would have involved multiple days of a reporter’s time, for a relatively straightforward story.

Apparently, when it's someone else, rather than the NY Times itself... it's just a "relatively straightforward story" not worth a reporter's time.

As the Bradley Manning court martial trial moves forward, Manning has apparently submitted a plea notice more or less looking to speed up the process by effectively admitting to the fact that he leaked the info to Wikileaks, without pleading "guilty" to any of the charges. The idea appears to be a procedural move to try to take a shortcut to focusing on some lesser charges by admitting some factual things, and leaving some of the most serious charges off the table. This isn't a "plea bargain" in which both sides make an agreement -- but rather an attempt to effectively say "here's what we agree to, without having to go through the effort of proving it, and then let's focus on these lesser charges." The judge does not need to accept this offer, however.

Manning did not plead guilty to the charged offenses in the plea notice. However, significantly, he did indicate with this notice that he is willing to admit to the fact that the act of providing information to WikiLeaks did occur or that the government has evidence that would prove he did commit the act and so he is willing to plea to it.

The notice was a plea to lesser-included offenses—charges with different elements that the judge could agree upon if there is no evidence for the more severe charges. Pleading to lesser-included offenses makes it possible to not plea to committing offenses under the Espionage Act or Computer Fraud and Abuse Act (CFAA). Importantly, he can plead guilty without accepting the government’s charge that he “aided the enemy” or “exceeded authorized access” on his computer

Notably, that report, from Firedoglake's Kevin Gosztola, points out that even if this goes through, Manning could still end up with life in prison for "aiding the enemy."

Meanwhile, Andy Greenberg notes that merely making this offer does not bind Manning into this admission -- especially if the government doesn't accept the deal (the judge has to accept it first). He can rescind it, and it can't be used against him. It's basically an attempt to speed up the process, along with the recognition that Manning almost certainly is going to be found guilty of something, so the attempt is to narrow down the possible charges to things that aren't quite as severe.

We've talked about the problem in which classified documents that are leaked and widely available to the public are still considered classified by the government, even though the concept is ludicrous. It leads to absolutely ridiculous situations, such as government employees not being able to look at documents available on Wikileaks, even as everyone else in the world can easily log in and see them. Or the case (linked above) in which lawyers representing Guantanamo detainees weren't allowed to look at these documents -- which anyone else in the world can see -- which relate to their clients. Even the NY Times called this situation "absurd." And it is. In the business world, people commonly sign "non-disclosure agreements," but they're always considered null and void if that same information becomes public by other means. It's bizarre that the government doesn't recognize the same policy.

However, in a lawsuit we first discussed last year, where the ACLU sued the State Department for failing to declassify (under a FOIA request) documents that were already widely available on Wikileaks, a judge has ruled against the ACLU, and said that the documents remain classified. Once again, this is absurd. It's as if everyone is actively denying reality.

The ACLU relied on the part of the test that questions whether the disclosure of the information "reasonably could be expected to result in damage to national security." Seeing as anyone seeking to "damage" our national security can just surf over to Wikileaks, and has been able to do that for quite some time, you'd think that the ACLU's argument was pretty rock solid. Not according to the court (pdf and embedded below). The court seems to tapdance around the issue. It argues that the Court should "defer" to the judgment of the administration on this question, and that it's possible that the official release of these documents could impact national security. I don't buy it. Any official release is unlikely to have any different impact than the unofficial release. To argue that making those releases official has some sort of new "threat" involved just doesn't pass the laugh test.

What's most distressing about this is that it shows a government that is not dealing in reality, but is dealing in a fantasy land, where it pretends that if it sticks its fingers in its ears, and hands over its eyes, it can pretend that the documents, which are very, very public, are not at all public. I want a government that deals in reality and not fantasy. Unfortunately, with this situation, we have the reverse -- and, bizarrely, the courts are saying that an executive branch that lives in fantasyland is just fine.