Thomas Drake, formerly of the NSA, offers this test . . .

In this interview, Thomas Drake offers this test, and his background should be of special interest.

Thomas Drake is a former National Security Agency senior executive. He blew the whistle on multibillion-dollar fraud and a vast Fourth Amendment-violating secret electronic surveillance and data mining program that he says fundamentally weakened national security and eroded civil liberties. He was charged under the Espionage Act by the Obama administration and faced 35 years in prison. The criminal case against him ultimately collapsed and charges were dropped.
Here's Drake's test.
If I say take your entire life, all your passwords and all your accounts and all your credit cards and every email address, and put it into a box, drive to the other side of town, knock on the door of a perfect stranger, but a fellow citizen, and say, here, I'm giving you this box for safekeeping, would you do it? Everybody to date has said, of course not. And then I ask, why not? Well, because I don't trust them. So then I say, well, if you don't trust your fellow citizen, then why would you trust the government in secret, without your consent--without your consent, I want to reemphasize--with learning everything there is to know about you? Well, and then they kind of look at you funny and say, oh, I never thought about it quite that way.
That's what we're facing. And as we saw during the Nixon administration, the ability of the government to abuse and misuse that kind of information is just--without controls, without checks, without the ability to provide legitimate and fundamental oversight, well, then we have a scenario where the government's out of control in its ability to know everything there is to know about all of its people.

Continue ReadingThomas Drake, formerly of the NSA, offers this test . . .

A Supreme Court Opinion to heed

Back in 1971, Justice Hugo Black issued an extremely well-reasoned concurring opinion in the case of New York Times v United States. Many things have changed since 1971, but this clear-headed opinion addresses many aspects of the current controversy involving Edward Snowden. Back in 1971, The NYT had begun publishing installments of the then-classified Pentagon Papers, which indicated that America's war efforts were a sham, and that America had little to no hope of success in the conflict. This was sharply at odds with what U.S. politicians had be telling the public. In response to the initial publication installments, President Richard Nixon's Attorney General, John Mitchell, filed an injunction action seeking to prevent publication of further installments. The injunction was granted, and the case quickly rose up for review by the United States Supreme Court. There was no majority opinion, but the divided court did vote 6-3 to reverse the trial court and to allow the NYT to continue publication. The following excerpts are from Justice Black's concurrence:

"[T]he injunction against the New York Times should have been vacated without oral argument when the cases were first presented ... . [E]very moment's continuance of the injunctions ... amounts to a flagrant, indefensible, and continuing violation of the First Amendment. ... When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights ... . In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe ... . In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. ... [W]e are asked to hold that ... the Executive Branch, the Congress, and the Judiciary can make laws ... abridging freedom of the press in the name of 'national security.' ... To find that the President has 'inherent power' to halt the publication of news ... would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make 'secure.' ... The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security ... . The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.
The government had based its case on the Espionage Act of 1917. I'm reprinting an excerpt from the Act immediately below. One can immediately see how vague (arguably constitutionally defectively vague) and broad (arguably constitutionally overbroad) at least this portion of the Act is, something to keep in mind when considering that this is the law the government is supposedly enforcing in modern times to punish whistle-blowers, including Bradley Manning and Edward Snowden. Section 793(e) of the act (a section that Snowden was apparently charged under) makes it a criminal offense to do the following:
Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or 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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.

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Chris Hedges and Geoffrey Stone on whistle-blowers: What can one do about the Surveillance State?

Democracy Now's Amy Goodman led a discussion also involving Chris Hedges and Geoffrey Stone, law professor at the University of Chicago Law School. Hedges supports the disclosure of government secrets to the press by people of conscience where the secrets are disclosed to the press. Stone indicates that what Edward Snowden disclosed was clearly a crime and he should be prosecuted, although the government needs to reevaluate the scope of its surveillance state. Fascinating conversation. My own position is quite close to Hedges on this issue, but I also believe that citizen journalism should be regarded as comparable to mainstream journalism in terms of protection offered from prosecution for engaging with whistle-blowers to discuss what they believe to be government wrong-doing. Elevating citizen journalists (I aspire to assume that role) to the category of the press, of course, means that any whistle-blower could talk to any blogger about any government secret and yet be protected from prosecution. This is a thorny issue, but one where work-arounds seem possible, especially given Stone's alternative. Stone argues that where government is acting inappropriate in realms involving classified information, the leakers should be prosecuted, even in situations involving grave government injustice. The press is immune from prosecution in this situation, based on the Pentagon Papers case. Stone's position is deeply unsettling, however, because the issue today is out-of-control government surveillance. This rampant spying, including on reporters and sources, means that there won't be any more revelations of government wrongdoing by the press. The current situation amounts to shutting down the press, meaning that the public will be kept in the dark. Stone's "solution" for this is that government should seek internal solutions to its own injustices, in the dark. Stone asserts this to be a solution despite his earlier statements that governments are strongly motivated in the direction of NOT finding true solutions, but rather in maintaining and aggregating power over the citizens. My challenge to Professor Stone, then would be to offer a real long-term solutions. He pulls out the threat of terrorism card near then end of the discussion to justify what apparently amounts to the status quo approach (prosecute whistle-blowers who talk to the press, which Hedges argues will destroy the press). Hedges further disparages the concern with terrorism, indicating that terrorists communicate off the grid, meaning that the Surveillance State's victims are ordinary people. [Note: This discussion occurred prior to more recent disclosures that the U.S. government is collecting far more than metadata] Here is an excerpt from the discussion:

CHRIS HEDGES: Well, what we’re really having a debate about is whether or not we’re going to have a free press left or not. If there are no Snowdens, if there are no Mannings, if there are no Assanges, there will be no free press. And if the press—and let’s not forget that Snowden gave this to The Guardian. This was filtered through a press organization in a classic sort of way whistleblowers provide public information about unconstitutional, criminal activity by their government to the public. So the notion that he’s just some individual standing up and releasing stuff over the Internet is false. But more importantly, what he has exposed essentially shows that anybody who reaches out to the press to expose fraud, crimes, unconstitutional activity, which this clearly appears to be, can be traced and shut down. And that’s what’s so frightening. So, we are at a situation now, and I speak as a former investigative reporter for The New York Times, by which any investigation into the inner workings of government has become impossible. That’s the real debate.

Continue ReadingChris Hedges and Geoffrey Stone on whistle-blowers: What can one do about the Surveillance State?

The Motivation of Edward Snowden

Common Dreams recently published a video in which Edward Snowden elaborates on his concerns and motivations for exposing the NSA. The following quote stood out: "The structures of power that exist are working to their own ends to extend their capabilities at the expense of the freedom of all publics." Related news: From Democracy Now (Amy Goodman interview of Glenn Greenwald): "The reason that Edward Snowden came forward, the reason that we’re reporting on this so aggressively, is because—and this is not hyperbole in any way; it’s a purely accurate description—the NSA is in the process, in total secrecy, with no accountability, of constructing a global, ubiquitous surveillance system that has as its goal the elimination of privacy worldwide, so that there can be no electronic communications—by telephone, Internet, email, chat—that is beyond the reach of the United States government. They are attempting to collect and store and monitor all of it, and that they can invade it at any time they want, no matter who you are or where you are on the planet. This has very profound implications for the kind of world in which we live, for the kind of relationship the United States has to the rest of the world, the way in which individuals feel free to communicate with one another, use the Internet. And that, I think, is why the story is resonating as much as it is." Regarding recent revelations by the NYT that secret U.S. court ruling are sweeping in scope: "What you actually have is a completely warped and undemocratic institution, this court that meets in complete secrecy, where only the government is allowed to attend. And unlike previously, when it really was confined to just issuing individual warrants about particular targets of terrorism, it is now issuing sweeping, broad opinions defining the contours of our constitutional liberties, of the Fourth Amendment, of the government’s power to spy on us—and it’s all being done in secret. What kind of a country has a court that defines the Constitution in total secrecy and forces us to live under truly secret law in which the government can do all sorts of things to us that we’re not even aware of, that it’s claiming the right to do and being given the power to do it?"

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