by Mike Masnick
Thu, Jul 7th 2011 10:06pm
by Mike Masnick
Tue, Jul 5th 2011 9:26am
from the thought-this-would-go-away? dept
by Tim Cushing
Wed, Jun 15th 2011 1:31pm
from the joseph-heller's-coffin-clocked-at-over-7,200-rpm dept
Things turned even more surreal when lawyers for Guantanamo detainees were not allowed to view leaked documents that had been published online by various news services. When is public information not truly "public?" Well, when it's "classified," of course. Had the principles not been currently fighting a legal battle in a U.S. court, they could have joined the rest of the U.S. (and the world) in reading and using these leaked documents.
In the business world, if a document is considered secret, it's commonly accepted that if it becomes public by other means, those with a contractual obligation not to discuss are now free from their obligations. This makes sense. Pretending that documents that are publicly available for all and which have been widely discussed in the press are not "public" doesn't make sense.
With a recently filed lawsuit against the State Department, the ACLU hopes to bring this legal catch-22 to its illogical conclusion and make publicly published documents officially public. Andy Greenberg (Forbes) explains the ACLU's rationale:
Given that all those memos have already been covered by the news media, why bother to declassify them anyway? "The point is to expose the legal fiction that the secrecy system rests on," says Ben Wizner, a staff attorney for the ACLU. "The government uses this formality of secrecy to avoid having to answer for real violations of the law."This should prove to be an alternately infuriating and entertaining case. There's going to be a whole lot of circular reasoning in play, all of it under the pretense of protecting state secrets that everyone already knows. The sad part is that taxpayers will be footing the bill for the government's last-ditch attempt to close several barn doors, while warily keeping an eye on all the free-roaming horses.
Wizner says that keeping the documents classified makes them much more difficult to use in courts, for instance, and allows the government to avoid confirming their authenticity.
The files that WikiLeaks released on Guantanamo detainees in April, for example, can’t be used by the defense lawyers for those prisoners unless they’re viewed in a secure government facility. “Government employees can’t read the New York Times. When I go to court in a real lawsuit seeking to get compensation for a victim’s ordeal and hold people liable, I can’t use this information,” Wizner says.
by Mike Masnick
Mon, Jun 13th 2011 5:35am
from the if-only-he-would-tell-Obama-that dept
“The US diplomats actually came out looking pretty good because the same thing they were saying in private was the same thing they were saying in public," he said.Later, he said that he hoped such revelations from Wikileaks would lead to more open discussions by governments, rather than trying to keep everything secret.
"The data that was divulged provided a lot of the justification for policies that the US government had been undertaking for years."
Nelson said that the President of Iran, Mahmoud Ahmadinejad, held a press conference to denounce WikiLeaks as a fraud because of leaked cables describing meetings between US ambassadors and heads of state in Oman, Kuwait, Bahrain and Saudi Arabia.
"Memo after memo said, 'The head of state reports that the guy across the [Persian] Gulf is crazy and they want the US government to do something about Mahmoud Ahmadinejad'," Nelson said.
"In public the heads of state would never say that, which was why Ahmadinejad concluded the memos were fake because he thought he was well-loved by his Arab brothers.
"Releasing this information is giving people a better understanding of the challenges that [US] foreign policy makers face."
"If there is a corrupt official taking million dollar bribes from the Russians, maybe that should be public knowledge rather than hidden in a WikiLeaks cable?" he said.I assume he meant a State Department cable, but the point makes a lot of sense. Too bad so few people in government seem to agree.
by Mike Masnick
Thu, Jun 9th 2011 1:25pm
from the this-is-the-new-transparency? dept
Meanwhile, many who are being called as witnesses are refusing to participate, and may face jailtime themselves:
But it also highlights a very important potential controversy: the refusal of numerous witnesses to cooperate in any way with this pernicious investigation. One witness who has appeared before the Grand Jury has already refused to answer any questions beyond the most basic biographical ones (name and address), invoking the Fifth Amendment right against self-incrimination to do so, and other witnesses are highly likely to follow suit.This whole thing seems like a massive waste of resources by the Administration, seeking to punish whistleblowers and the press for revealing information that wasn't sensitive, but merely embarrassing.
One option for federal prosecutors when facing a witness who refuses to answer questions on this basis is to offer them immunity, meaning that nothing they say when testifying can be used to prosecute them (they can still be prosecuted, just not with the aid of anything they say while testifying). Such an offer then precludes further invocations of the self-incrimination privilege as a grounds for refusing to answer questions, as it means there is no longer any danger that the witness could incriminate themselves by testifying. In the event the government makes such an offer, the court would almost certainly compel the witness to answer questions. But at least some of those witnesses -- ones who have already been subpoenaed or are likely to be -- intend to refuse to answer questions anyway, risking an almost-certain finding of contempt of court, which typically carries jail terms as a means of forcing testimony.
One witness or potential witness who is considering that form of civil disobedience told me they view the attempt to criminalize WikiLeaks as such a profound assault on basic freedoms, including press freedoms -- one motivated by a desire to conceal government wrongdoing and illegality -- that they would rather be imprisoned than cooperate in any way with those efforts. That is the mindset of true principled heroism, and if it actually comes to that, anyone committed to transparency and preservation of press freedoms should do everything possible to support such persons in any way they can...
by Mike Masnick
Mon, May 23rd 2011 6:46am
from the who-didn't-protect-its-users dept
It appears that the ACLU and the EFF are asking the same question.
While (of course) it would appear that such info is being kept totally secret by the US government, those two organizations scanned the case numbers to determine that it appears four other similar orders were issued at the same time as Twitter's order -- and they'd like to know who those orders went to, in order to defend the users' right to privacy. The argument seems pretty sound here. Since these users are currently fighting the government's attempt to have Twitter hand over their info, shouldn't they have the right to fight against other services handing over their info?
Of course, the end result of this will almost certainly be a revelation of which four online services simply rolled over rather than defending their users' rights. Anyone want to take guesses as to who's on that list?
by Mike Masnick
Fri, May 6th 2011 6:03am
from the that's-not-good dept
Now, it's great that the Wall Street Journal has decided to get into the game, and one would hope that other newspapers will set up similar secure and protected dropboxes for information. But... there are some serious problems with the WSJ's implementation. First of all, the terms of service basically say that you shouldn't expect them to protect your anonymity at all:
"Except when we have a separately negotiated confidentiality agreement… we reserve the right to disclose any information about you to law enforcement authorities or to a requesting third party, without notice, in order to comply with any applicable laws and/or requests under legal process, to operate our systems properly, to protect the property or rights of Dow Jones or any affiliated companies, and to safeguard the interests of others."In other words, if you leak to the WSJ and the government wants to know who you are, the WSJ is going to tell the government. Apparently, the WSJ doesn't think too highly of the concept of journalistic shields for sources.
Separately, researchers, including Jacob Appelbaum are pointing to numerous security flaws in Safehouse's implementation that could also reveal someone's identity, despite promises of anonymity.
Hopefully, the WSJ is willing to admit that it hadn't necessarily thought through all the implications, and will fix these problems quickly.
by Mike Masnick
Wed, May 4th 2011 1:02pm
Hillary Clinton: We Want Journalism Innovation That Makes Info Easier To Share... Unless It's Wikileaks
from the tone-deaf dept
We have all witnessed the power that this surge in connectivity can have in shaping society and holding governments accountable. New media empowers individuals around the world to share information and express opinions in ways unimaginable just ten years ago.And yet, all of this is occurring at the same time that the State Department has continued to condemn Wikileaks and has supported the treatment of folks like Bradley Manning. He doesn't qualify as someone who decided to "speak out in perilous circumstances" as he tried to "pursue, record and report the truth?"
Even as we celebrate innovations that make information easier to share, we are reminded that in many places around the world, journalists are still targeted for harassment and abuse, and are sometimes killed. Today, we remember that journalism is a calling of everyday heroes. We must continue to stand up for those who speak out in perilous circumstances as they pursue, record, and report the truth.
by Mike Masnick
Fri, Apr 29th 2011 7:08am
from the either-way... dept
That's one argument in an article that appeared Wednesday in the Harvard Law and Policy Review by Jonathan Peters, a lawyer and research fellow at the Missouri School of Journalism. The First Amendment, Peters argues, protects both free speech and freedom of the press, and neither of those protections is any more or less powerful in protecting an organization that publishes classified documents. The amendment, after all, reads "Congress shall make no law... abridging the freedom of speech, nor of the press," and doesn't make a distinction between the level of protection on either one of those two clauses.This seems like an important reminder for those still arguing over how to classify Wikileaks.
"The First Amendment does not belong to the press," Peters writes. "It protects the expressive rights of all speakers, sometimes on the basis of the Speech Clause and sometimes on the basis of the Press Clause. To argue that the First Amendment would protect Assange and WikiLeaks only if they are part of the press is to assume (1) that the Speech Clause would not protect them, and (2) that there is a major difference between the Speech and Press Clauses."
by Mike Masnick
Mon, Apr 11th 2011 11:25am
from the moral-high-ground dept
The latest is that a who's who of US legal scholars, including the guy who taught President Obama constitutional law (and was a big supporter of Obama during the campaign), have written an open letter condemning the treatment of Bradley Manning as being unconstitutional. That law professor, Laurence Tribe, had actually been a legal advisor to the Justice Department until recently. The original letter was written by Bruce Ackerman and Yochai Benkler, and the list of signatories is pretty impressive.
When you have so many experts in constitutional law speaking up for the way President Obama is treating Manning, can Obama really ignore them completely?