Author: Nathan
In 2003, New York Times journalist James Risen called US government representatives to ask about a covert CIA operation to disrupt Iran’s nuclear programme. Eager to root out any information leak that doesn’t present the administration in a positive light, the government began investigating who Risen’s source or sources might be. The Times ultimately killed the story at the government’s request, but Risen published some of it in his 2006 book ‘State of War.’
Risen’s suspected source, Jeffrey Sterling, has now been convicted of nine felonies, including Espionage (see his indictment), for allegedly disclosing classified information. Sterling. a former CIA officer, had his security clearance revoked in 2001 and then was fired in 2002, after he filed an official complaint of racial discrimination.
Sterling’s defence has argued that the government could not even prove that Risen’s source was Sterling, let alone that the alleged disclosure constituted espionage. Much of the controversy surrounding the case centered on whether Risen would be forced to testify against his source or sources. Risen fought the subpoena, with fellow journalists and civil liberties condemning the notion that a reporter should have to give up his sources, but the government won an appeal and compelled him to testify. However, just before the trial commenced, the DOJ reversed course and decided not to call Risen to the stand.
Still, the case proceeded:only the second espionage case to go all the way to trial (the first was US Army whistleblower Chelsea Manning, now serving 35 years in jail). But the prosecution’s case against Sterling has been entirely circumstantial, as even the judge in his case, Judge Leonie Brinkema, conceded. As Marcy Wheeler writes for ExposeFacts, which has been covering the trial in depth:
The only evidence of phone calls between Sterling and James Risen immediately before Risen went to the CIA with a fully drafted story on the Merlin operation consists of 2 minutes and 40 seconds of calls, total, across 7 phone calls. Then there’s one email in which Sterling sent Risen a link to an unclassified article on Iran posted by CNN.
Two minutes and 40 seconds for what would likely have been a 1000-word story?
The government also failed to convincingly prove that Sterling, if involved, was Risen’s lone source for the information in question: as Wheeler writes, prosecution witness “FBI Agent Ashley Hunt, admitt[ed] she had not even tried to gather evidence from some of the other possible sources for Risen, and had not succeeded for others.”
The jury deliberated for days and initially returned to the judge undecided, but it ultimately convicted Sterling of all nine counts. The sentencing trial is scheduled for 24 April. Sterling could theoretically face more than 100 years in prison, though judges in similar cases usually sentence concurrently — still the potential sentence is many years of jail time.
Sterling’s conviction is another landmark in the Obama Administration’s ongoing, unprecedented, and speech-chilling war on disclosures of information and therefore on the journalism these sources make possible. Government Accountability Project’s Jesselyn Radack, a whistleblower lawyer and DOJ whistleblower herself, swiftly condemned the conviction: “I’m frankly appalled that the jury would convict based on a purely circumstantial case,” Radack told Foreign Policy, calling the decision “a new low in the war on whistleblowers.”
As Foreign Policy continues, “While she thought an appeal very likely, Radack said the conviction would both discourage government sources from disclosing important information to journalists and intimidate reporters who might otherwise try to dig up such stories.”
Just after the jury delivered its verdict in Sterling’s case, the Department of Justice issued a press release claiming that whistleblowers can be prosecuted “without interfering with journalists’ abilities to do their jobs.” Nothing can be further from the truth. There is already evidence that the US government’s persecution of truthtellers has already silenced those in government who are otherwise compelled to reveal evidence of abuse and wrongdoing. Guardian journalist Maggie O’Kane said in 2013 that she and her colleagues spent six months trying to speak to soldiers, but that all but one were too afraid to speak out after seeing what happened (from prison abuse to a massive charge sheet) to Chelsea Manning. This chilling effect hinders journalists’ ability to do their jobs and citizens’ ability to hold their governments accountable.
The 31st Chaos Communication Congress was in Hamburg, Germany, 27-30 December. On 28 December, Courage Acting Director Sarah Harrison and FreeJeremy.net manager Grace North gave a talk entitled Doing Right by Sources, Done Right, in which they discussed the “ethics, operational security and public protections of sources,” in addition to the need for expanding our understanding of the term “whistleblower.”
In addition to Courage’s work hosting the defence funds for Edward Snowden and Jeremy Hammond, Harrison spoke about our upcoming projects. These include providing detailed advice for journalists to operate securely, to protect their sources from first contact to post-publication aftercare. Another project is Courage’s forthcoming Network of specialised lawyers who will be prepared to provide future sources at risk with legal advice and logistical assistance, be that funding, physical extraction, or negotiating asylum.
Harrison, who is WikiLeaks’ investigations editor, also revealed a US search warrant to Google demanding all emails and metadata from a member of WikiLeaks, which Google complied with.
ALERT: Google notified us on Xmas eve that they handed over all emails+metadata from one of our staff in response to a US search warrant.
— WikiLeaks (@wikileaks) December 26, 2014
Visit the CCC’s YouTube channel for more videos from the Congress, and here for more information about other events.
Antoine Deltour a 28-year-old French national and former PricewaterhouseCoopers employee, has come forward as one of the alleged sources of the International Consortium of Investigative Journalists’ (ICIJ) LuxLeaks release. Deltour went public in an interview with French newspaper Liberation on Sunday.
Deltour joined PricewaterhouseCoopers as an auditor in 2008, aged 22, and resigned two years later. Before leaving, he came across evidence of complex tax arrangements PwC negotiated for clients with the approval of Luxembourg’s authorities and made copies of them. As Deltour explained to Liberation:
I copied training documents, but while searching the PwC database, I also came across these famous tax rulings. Without any particular intention or precise plan, I copied these also because I was appalled by their content.
According to a new website set up by his support committee, Deltour was contacted by a journalist in summer 2011 and the copied documents formed the basis for several broadcasts on French television the following spring. PwC made a criminal complaint in June 2012, following the broadcast.
Over two years later, Deltour is one of the alleged sources of the ICIJ’s LuxLeaks. A first tranche of documents, released on 6 November, concerned tax avoidance negotiated by PwC with a second release this month broadened the scope of the investigation to the rest of the big four accountancy firms.
LuxLeaks follows another large tax-related investigation by the ICIJ, Offshore Leaks, which was based on a 260 GB hard drive posted anonymously to a journalist. Many of these records are now available online.
Tax avoidance has become a highly controversial issue in the EU, where people are facing consecutive years of reduced public spending under austerity budgets. LuxLeaks has proven to be particularly contentious in Brussels as the new head of the European Commission, Jean Claude Junker, was the prime minister of Luxembourg at the time critical elements in its tax regime were enacted. Junker now faces a vote of no-confidence and an inquiry into his involvement in systematic tax avoidance.
Deltour says he has not been involved with ICIJ directly and, in his Liberation interview, points out that some of the LuxLeaks documents are dated later than 2010.
I’m just part of a broader movement. In LuxLeaks 1 mentions several internal documents subsequent to my departure from PWC. I am not alone. In LuxLeaks 2 it comes to records controlled by the other members of the big four [of the financial audit]: Deloitte, KPMG, Ernst & Young.
It is unfair that Luxembourg is the only country pilloried and that only one audit firm is singled out because these practices are systemic. I do not like the term tax optimization, it’s a euphemism for aggressive tax planning implemented by some states and complex strategies practiced at industrial scale by some firms. Regulation will always lag behind financial engineering.
Charged with theft, professional secrecy violations, trade sercecy violations and illegal acquisition of data, Deltour appeared before a judge on 12 December. Supporters are raising awareness about Deltour’s case. A petition for Deltour, who has garnered the support of a French coalition of NGOs Platform on Tax Havens and French judge Eva Joly, among others, has more than 2,000 signatures. As the supportive blog notes, Deltour could face prison time and a heavy fine.
We will report on further developments in Deltour’s trial as it unfolds.
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Make a holiday donation in support of Courage
This holiday season, donate to Edward Snowden, Jeremy Hammond, and the only organisation fighting on the frontlines of whistleblower defense. Courage, already with two beneficiaries and the launch of our alleged sources under investigation protection fund: “Known Unknowns Fund”, we have more plans in store for 2015 for projects to provide even greater comprehensive protections for sources at greatest risk, but they require your help.
Please give what you can this year.
Celebrities stand with Edward Snowden and Courage
An international coalition of more than fifty actors, musicians and intellectuals have out their names to a statement affirming their support for Edward Snowden, WikiLeaks, whistleblowers and publishers. Publications including Rolling Stone, Liberation and the Guardian have printed the statement and the calls of Vivienne Westwood, Viggo Mortensen and others to support whistleblowers by donating to Courage.
Read the statement, along with a full list of signatories.
Courage at CIJ’s inaugural Logan symposium
This weekend, the Centre for Investigative Journalism’ s first annual Logan symposium – titled “Building an alliance against Secrecy, Surveillance and Censorship” – took place in London. Topics ranged from whistleblowing practices, to working with Snowden’s documents, to anonymous and secure journalism. Courage Acting Director Sarah Harrison, Courage Trustees Julian Assange and Gavin MacFadyen, Advisory Board members Daniel Ellsberg, Andy Müller-Maguhn and Annie Machon, Citizenfour director Laura Poitras, and many more gave presentations. Thousands worldwide watched the event livestream on couragefound.org, where we’ll be publishing video recordings of each speaker, as soon as they’re made available.
Sarah Harrison’s Logan symposium talk liveblogged by the Guardian here.
CitizenFour released to widespread acclaim
Laura Poitras’ documentary Citizenfour, which is structured around powerful footage of Edward Snowden’s first meetings with journalists in Hong Kong, has been short-listed for an Academy Award. We think it’s a film that everyone interested in Edward Snowden and his revelations should see.
To coincide with the film’s US release, Edward Snowden gave a few high-profile interviews, including a Q&A with Larry Lessig at Harvard University, which we livestreamed.
Citizenfour highlights the dire need for better source protection — before truthtellers are under investigation. Courage hosts the Known Unknowns Fund, the only fund designed to help alleged journalistic sources before the government comes knocking on their door. Support these sources here.
- Here’s our Citizenfour review
- Citizenfour reviewed by Courage Advisory Board member Ray McGovern
- Another Citizenfour review from Courage Trustee Gavin MacFadyen
- Information on screenings worldwide is available on the film website
- Our report on Edward Snowden’s appearance at Harvard University
Jeremy Hammond in solitary for two weeks, in prison for a thousand days
Courage beneficiary Jeremy Hammond, who recently passed the 1000 days in prison mark, was placed in solitary confinement for a fortnight in the middle of October. The prison claimed this was punishment for stealing clothes from the laundry room, where Jeremy works. Solitary confinement is widely condemned as psychological and physical torture, with the CCR writing, “prolonged solitary confinement causes prisoners significant mental harm and places them at grave risk of even more devastating future psychological harm.”
Jeremy needs funds in these types of situations to maintain his commissary, which he uses to purchase items in prison. In solitary, inmates are afforded no possessions, and just one book at a time.
Read more here.
“Monument to courage” being crowdfunded
Courage advisory board member Vaughan Smith has launched a crowdfunding campaign for a public artwork which will travel the world highlighting the importance of truthtellers. Italian sculptor Davide Dormino’s work Anything To Say? will feature life-size bronze statues of Edward Snowden, Chelsea Manning and Julian Assange standing on chairs, with an empty chair next to them, so that members of the public can interact with the artwork. The project is close to 20% funded with 23 days to go.
Contribute to the campaign here.
Courage in the news
Courage is excited to welcome Nadezhda Tolokonnikova and Maria Alyokhina, members of the Russian punk rock collective Pussy Riot, who made international news when they were jailed for two years for an anti-Putin protest ahead of Russian presidential elections. Speaking to the Guardian about joining Courage, Nadezhda and Maria said they had many things in common with Courage trustee Julian Assange, namely interest in Chelsea Manning, which they called “one of the most important cases in today’s world.”
The release of CitizenFour has helped put the focus on Berlin as a centre for anti-surveillance activism. Courage was mentioned in a special edition of Berlin magazine the ExBerliner and in an Observer feature by Carole Cadwalladr.
- Read the features in the ExBerliner
- And the Observer
- Germany’s Taz profiles whistleblower support organisations
Advisory Board member Eben Moglen condemns new GCHQ head Robert Hannigan’s “assault on privacy” in a new piece for the Guardian. Hannigan, Moglen writes, is “deploying the most inflammatory and misleading language available, to publicly blackmail companies into abandoning the rule of law, to bludgeon them into providing assistance for the illegal surveillance of their customers.”
Read the full article here.
How you can help Courage
Donate
Donating is the easiest, fastest and most tangible way you can support Courage now. We’re establishing a defence fund that will serve long-term as a safety net for whistleblowers in peril, present and future. We need to finance legal teams, as persecuted sources often can’t afford to pay their own court costs and legal defence against state prosecutions can amount to many hundreds of thousands of dollars. We also need resources to provide websites and campaign teams to campaign publicly for the protection of our beneficiaries, publicise the issues whistleblowers have disclosed, advocating across global media and building support networks around the world.
- Donate to Courage generally, to sustain our work defending these whistleblowers and fighting for your right to know
- Donate specifically to Edward Snowden’s defence fund
- Donate specifically to Jeremy Hammond’s defence fund
- Donate specifically to the Known Unknowns Fund, which helps truthtellers at risk, before the investigation stage
- You can also contribute by purchasing merchandise at the Courage shop
Volunteer
We’re always looking for volunteers to help us reach as wide an audience as possible. Translating our websites is an important ongoing task and new designs for our shop would be very welcome.
To get in touch please email: courage.contact@couragefound.org
Citizenfour, the new documentary from acclaimed filmmaker Laura Poitras, director of The Oath and My Country, My Country, has incredible access to NSA whistleblower Edward Snowden, produced as it is by a central protagonist in his story. It is no small achievement to show the human cost of blowing the whistle as vividly as Poitras’ film does without obscuring the importance of the message. No viewer is likely to come away from Citizenfour unconvinced of the gravity of mass surveillance, or that systems of support for truthtellers are so sorely needed – and that, despite enormous risks, conscientious individuals will continue to come forward to inform the public.
The centerpiece of Citizenfour is a sequence that takes up half its running time, shot in the Hong Kong hotel room where Edward Snowden first met the journalists who would bring his revelations to world attention. In a small room at the Mira, Edward Snowden explains in calm and lucid terms why he decided to risk his life and liberty to expose international mass surveillance, unambiguously in the interests of the public. In a matter of days, he and the three journalists in the room – Laura Poitras, Glenn Greenwald and Ewen MacAskill – pull together the initial reports that dominated headlines in the summer of 2013: the Verizon court order that demonstrated the existence of domestic bulk collection, the NSA’s PRISM access to online service providers’ data, GCHQ’s extraordinarily broad TEMPORA data collection and, of course, finally the identity of the whistleblower himself.
In the lead-up to the sequence in Hong Kong, we see just how much our understanding of the NSA’s activities owes to whistleblowers. Poitras shows William Binney’s attempts to first build privacy protections into the ThinThread collection programme, and then to make its civil liberties infringements known. We also see arguments in the EFF’s long running anti-surveillance legal action, Jewel v NSA, launched back in 2008 as a consequence of AT&T whistleblower, Mark Klein’s disclosures. This sequence shows the limits of legal activism in the face of state secrets privilege and the other maneouvres the government can employ when facts are not in the public domain. By providing the documents that enable such actions to continue, Edward Snowden has in a very real sense built on the contributions of previous whistleblowers.
Just as Mark Klein’s disclosures made the initial stages of Jewel v NSA possible, the film indicates the range of consequences of Snowden’s revelations. The revelations have produced more real-world impact than could fit in any two hour documentary, but we see scenes from the EU and Brazilian investigations into mass surveillance. Bill Binney comes back into frame, this time to testify to the ongoing Bundestag investigation into surveillance. The film conveys the feeling that there’s going to be a lot more to come – and Courage’s official Edward Snowden support site will continue to track those developments here.
One of the most important messages of the film is left implicit: as viewers, we are made very aware of the risks Edward Snowden took. Poitras’ camera captures Snowden’s reaction to truly extraordinary circumstances. Even as we see his bravery in contemplating his own likely apprehension and imprisonment – he is surprisingly calm throughout – Edward Snowden is still visibly unnerved when he learns that his girlfriend Lindsay Mills has had to deal with a visit from the authorities. The Edward Snowden in Poitras’ film is a remarkable individual, but also very human one with very human fears about what might happen to him. When we see assistance begin to arrive – some days into his stay in Hong Kong, Edward Snowden is shown speaking to local lawyers over the telephone – we see how those efforts had to be improvised in the midst of international press attention and with US agents on their heels. The actions that actually saved Edward Snowden and brought him to safety of asylum in Russia happen off-screen, but a short shot of Julian Assange nods to this parallel narrative being planned simultaneously to the action Laura Poitras was able to film. Overall, the film serves as a striking reminder of the vital importance of reliable whistleblower protection and the risks involved in providing it.
Citizenfour concludes on two notes of optimism: first, we see that here is life after blowing the whistle and that Edward Snowden is leading an ordinary life in Russia with Lindsay Mills, free to continue to participate in the international debate he kick-started. We also see that others are coming forward. Greenwald is shown meeting Edward Snowden in another hotel room, this time in Moscow, telling him about a new source who was inspired by Snowden to blow the whistle.
Laura Poitras’ film shows us that that it is possible for truthtellers to escape prosecution under unjust laws and and an unconscionably long prison sentence. The US government tried to set an example of Chelsea Manning with an extremely long prison sentence as a deterrent; by protecting Snowden before he was discovered, those who helped him have set an example of their own to stand up for whistleblowers no matter the cost. But the film should also remind us of the need to ensure that systems and support networks are in place for future Snowdens to avoid prison. That’s spurred in part by Edward Snowden, and partly by what’s happened to his forerunners, like Bill Binney, or like Courage Advisory Board member Thomas Drake, another NSA truthteller. Drake worked for the NSA until 2006, when he blew the whistle on warrantless wiretapping. The US government charged him with espionage, threatening decades in prison, and ran him bankrupt fighting the case before dropping the major charges just before trial, leaving him out of work, out of money, and out of a reputation he spent his life building. Drake, like Snowden, could’ve used a well-resourced and well-prepared support system ready to defend him on every front. That’s what Courage is doing: both by crowdsourcing the legal defence for named truthtellers like Edward Snowden and by intervening as early as we can with a new fund for sources who find themselves under investigation and unable to go public, along with other plans as we grow to offer assistance and protection to truthtellers.
That Edward Snowden was protected even in such an extreme situation underscores how important it is for organisations like Courage to be prepared well earlier: to have lawyers and activists prepared to drop everything and protect a source before the government comes knocking on their door. The next Snowdens should have the kind of security they need waiting for them, so all they need to do is blow the whistle.
Updated below
This week, arguments were made in the first federal whistleblower protection case ever to reach the US Supreme Court. The case could set a precedent for protecting whistleblowers across the board — not just for those disclosing sensitive information, but those in every government agency — who face regulation-based retaliations for exposing information in the public interest.
Robert J. Maclean is a former air marshal who blew the whistle on Transportation Security Administration (TSA) cuts to MSNBC in 2003, after seeking internal remedies. In response, the TSA reversed its decision to cut down on air marshals during overnight flights but also fired Maclean several years later for disclosing “Sensitive Security Information,” which isn’t illegal but does breach their internal regulations.
In 2009 Maclean, represented by the Government Accountability Project, challenged his dismissal at the Merit Systems Protection Board, on the grounds that “his disclosure of the text message was protected under the Whistleblower Protection Act of 1989 (WPA), because he ‘reasonably believe[d]’ that the leaked information disclosed ‘a substantial and specific danger to public health or safety.’”
The MSPB sided with the government’s view that the “WPA’s ban on disclosures ‘specifically prohibited by law’ encompassed ‘information that is specifically prohibited from disclosure by a regulation promulgated pursuant to an express legislative directive.’” However, last year a three-judge Federal Circuit panel vacated that ruling on appeal. Now the Department of Homeland Security wants the U.S. Supreme Court to overturn that ruling, claiming it “clears a path for any employee to do what [MacLean] did.”
At the Supreme Court
SCOTUSblog frames the basic question facing the Supreme Court as follows:
For a disclosure to be “specifically prohibited by law,” must an Act of Congress expressly bar that specific disclosure, or is it enough for Congress to generally delegate to an administrative agency the power to bar that specific disclosure?
A win for the Department of Homeland Security would represent a significant weakening of US whistleblower laws that, for non-classified sectors at least, are relatively well regarded.
The court heard oral arguments this week, and journalists are reporting that the government faced tough questioning from the justices, with Maclean’s case appearing to be favoured. The Washington Post writes that “the tone of the questions and comments from the justices hearing his case provided ample reason for this former air marshal to feel good about the first Supreme Court case directly involving a federal whistleblower.”
As the New York Times reports, “Ian H. Gershengorn, a deputy solicitor general, received hostile questions from most of the justices. Justice Antonin Scalia, for instance, was unconvinced by Mr. Gershengorn’s attempt to argue that the word “law” in isolation encompassed some but not all regulations.”
Furthermore,
Some justices wondered how transportation workers could tell what information was too sensitive to be disclosed. Chief Justice John G. Roberts Jr. noted that the government’s own brief had conceded that Mr. MacLean had been free to tell reporters “that federal air marshals will be absent from important flights” but also decline “to specify which flights.”
Justice Sonia Sotomayor told Maclean’s lawyer, “The facts are very much in your favor.”
Whether or when the justices will deliver a ruling remains to be determined, but follow the case’s progress here, and we will report on any updates.
Update: 22 January 2015
On 21 January, the Supreme Court ruled 7-2 in MacLean’s favour.
As SCOTUSblog’s Steve Vladeck writes, “Chief Justice Roberts quickly dispensed with the government’s theory – that the TSA regulations prohibiting unauthorized disclosure of SSI ‘specifically prohibited’ MacLean’s disclosure ‘by law.’”
Vladeck continues, commenting on the implications this case has for future whistleblowers:
the decision in MacLean clarifies that the Whistleblower Protection Act’s exemption for disclosures “specifically prohibited by law” does not apply to disclosures prohibited solely by agency regulations – or even by statutes that command the agency to promulgate non-disclosure regulations. Instead, the statute must itself bar the disclosure for the disclosure to be “specifically prohibited by law.
For now, whistleblower protections have not been weakened, though Chief Justice Roberts has invited Congress or the President, rather than the Court, to address whether to narrow them in national security cases.
By Ray McGovern, Courage Foundation Advisory Board
In early September in Russia, National Security Agency whistleblower Edward Snowden told me about a documentary entitled Citizenfour, named after the alias he used when he asked filmmaker Laura Poitras to help him warn Americans about how deeply the NSA had carved away their freedoms.
When we spoke, Snowden seemed more accustomed to his current reality, i.e., still being alive albeit far from home, than he did in October 2013 when I met with him along with fellow whistleblowers Tom Drake, Coleen Rowley and Jesselyn Radack, as we presented him with the Sam Adams Award for Integrity in Intelligence.
A year ago, the four of us spent a long, relaxing evening with Snowden – and sensed his lingering wonderment at the irony-suffused skein of events that landed him in Russia, out of reach from the U.S. government’s long arm of “justice.”
Six days before we gave Snowden the award, former NSA and CIA director Michael Hayden and House Intelligence Committee chair Mike Rogers had openly expressed their view that Snowden deserved to be on the “list,” meaning the “capture or kill” list that could have made Snowden the target of a drone strike. When I asked him if he were aware of that recent indignity, he nodded yes – with a winsome wince of incredulity.
This September, there was no drone of Damocles hanging over the relaxed lunch that the two of us shared. There were, rather, happier things to discuss. For example, I asked if he were aware that one of his co-workers in Hawaii had volunteered to Andy Greenberg of Forbes Magazine that Snowden was admired by his peers as a man of principle, as well as a highly gifted geek.
The co-worker told Greenberg: “NSA is full of smart people, but Ed … was in a class of his own. … I’ve never seen anything like it. … He was given virtually unlimited access to NSA data [because] he could do things nobody else could.”
Equally important, the former colleague pointed out that Snowden kept on his desk a copy of the U. S. Constitution to cite when arguing with co-workers against NSA activities that he thought might be in violation of America’s founding document. Greenberg’s source conceded that he or she had slowly come to understand that Snowden was trying to do the right thing and that this was very much in character, adding, “I won’t call him a hero, but he’s sure as hell no traitor.”
Snowden spoke of his former co-workers with respect and affection, noting that most of them had family responsibilities, mortgages, etc. – burdens he lacked. He told me he was very aware that these realities would make it immeasurably more difficult for them to blow the whistle on NSA’s counter-Constitutional activities, even if they were to decide they should. “But somebody had to do it,” said Snowden in a decidedly non-heroic tone, “So I guess that would be me.”
Following the intelligence world’s axiom of “need-to-know,” Snowden had been careful to protect his family and Lindsay Mills, his girlfriend, by telling no one of his plans. I found myself thinking long and hard at how difficult that must have been – to simply get out of Dodge without a word to those you love.
Perhaps he felt Mills would eventually understand when he explained why it was absolutely necessary in order to achieve his mission and have some chance of staying alive and out of prison. But, not having discussed with her his plans, how could he be sure of that?
And so, learning recently of the interim “happy-ending” arrival of Mills in Russia was like a shot in the arm for me. I thought to myself, it is possible to do the right thing, survive and not end up having to live the life of a hermit. Equally important, that reality is now out there for the world to see. What an encouragement to future whistleblowers – and to current ones, as well, for that matter.
Snowden was delighted when I told him that Bill Binney, the long-time and highly respected former NSA technical director, had just accepted the Sam Adams Award, which will be presented in 2015. It was Snowden’s own revelations that finally freed up Binney and other courageous NSA alumni to let the American public know what they had been trying, through official channels, to tell the overly timid representatives in Washington.
Seeing Citizenfour
Snowden was happy to tell me about the documentary, Citizenfour, explaining that during his sessions in Hong Kong with Laura Poitras, Glenn Greenwald, and The Guardian’s Ewen MacAskill, Poitras seemed to have the camera always rolling during the eight days they shared in Hong Kong – including during the grand escape from the hotel. With a broad smile, Snowden said, “Ray, when people see my makeshift disguise, well, it is going to be really hard to argue that this thing was pre-planned!”
All I have seen so far is the trailer, but I have tickets for a showing Friday night when Citizenfour opens in Washington and other cities. With Snowden, I figured I could wait to witness the grand escape until I saw the film itself, so I avoided asking him for additional detail. Like: ”Don’t spoil it for me, Ed.”
I was encouraged to read, in one of the movie reviews, that the documentary does allude to the key role played by Julian Assange and WikiLeaks in enabling Snowden’s escape. I had long since concluded that WikiLeaks’s role – and that of Sarah Harrison, in particular, was the sine qua non for success. I hope Citizenfour gives this key part of the story the prominence it deserves.
I feel it is an equal honor to spend time with Julian Assange in the Ecuadorian embassy whenever I’m in London. In early September, Assange was a welcoming host and we had a long chat over dinner while I was en route to Russia via London and Berlin. (I had been invited to present at the U.S.-Russia Forum in Moscow later last month and stayed there an extra day in order to visit with Snowden.)
I had been unaware of Citizenfour before visiting Assange. The film came up spontaneously when I volunteered to him that the safe extrication of Snowden from Hong Kong sits atop my gratitude list of the many things he has accomplished. That drew a very broad smile and some words about the world’s most powerful country and intelligence service, “and we still got him out!”
Assange shared how important it was not only to rescue Snowden himself but, in so doing, to provide for potential whistleblowers some real-life proof that it is possible to do the right thing and avoid spending decades in prison where WikiLeaks’ most famous source Chelsea Manning now sits. This was among the main reasons why WikiLeaks cashed in so many chips in its successful effort to bring Snowden to safety. It was surely not because Assange expected Snowden to share reportable information with WikiLeaks. He gave none.
Assange was in good spirits and hoping for some break in the Kafkaesque situation in which he has found himself for several years now (receiving asylum in Ecuador’s Embassy to avoid arrest in Great Britain and extradition to Sweden for questioning regarding alleged sexual offenses).
A Stop in Berlin
I also planned to spend a few days in Berlin to coincide with the NATO summit in Wales (Sept. 4-5). On Aug. 30, the Veteran Intelligence Professionals for Sanity sent a Memorandum to German Chancellor Angela Merkel, warning her about the dubious “intelligence” adduced to blame Russia for the troubles in Ukraine. Our memo had some resonance in German and other European media, but I was saddened to find the media in the UK and Germany as co-opted and Putin-bashing as the U.S. media.
It was 25 years after the fall of the Berlin Wall. What I said in my various talks and interviews on NATO’s reneging on its promise to Soviet leader Mikhail Gorbachev not to move NATO one inch eastward, once Germany was reunited, seemed to come as a major revelation to most listeners.
“Really?” was the predominant reaction when I explained that 25 years ago there was a unique, realistic chance for a Europe “whole and free” (in words then used by President George H. W. Bush and Gorbachev) from Portugal to the Urals. Instead, even after the collapse of the Soviet Union in 1991, Russia was excluded. NATO crept steadily east toward Russia’s border.
And last February, the U.S. and EU orchestrated a coup d’état in Kiev to foster Ukraine’s “European aspirations” to cast its lot with the West and dislodge itself from Russia’s sphere of influence. [See Consortiumnews.com’s “The Whys Behind the Ukraine Crisis.”]
The squandering of a historic chance for lasting peace in Europe remains atop the list of severe disappointments encountered during my professional life. The fact that, to this day, so few seem aware of what happened, and who was – and is – to blame, is also a major frustration.
In Berlin, consolation and affirmation came in renewing friendships there and getting to know others – many of them expatriates. First and foremost among the latter is Sarah Harrison, the main figure in executing WikiLeaks’s plan to get Snowden out of Hong Kong and onward to Latin American via Moscow, where his planned journey has so far stalled.
Because the U.S. Justice Department charged Snowden with espionage and the U.S. State Department revoked his passport, his stay in Moscow ended up being quite a long one. But Harrison stayed on for as long as seemed necessary to accompany and support Snowden, as well as to be able to testify to the fact that the Russians were not using anything like “enhanced interrogation techniques” on him.
I had last seen Harrison in Moscow at the Sam Adams Award presentation to Snowden; it was great to have a chance to chat with her over a long lunch.
Flying home from Moscow, having had lunch there with Edward Snowden, lunch in Berlin with Sarah Harrison, and dinner with Julian Assange in that little piece of Ecuadorian territory in London, what came first to mind was Polonius’s advice to Laertes: “Those friends thou hast, and their adoption tried, grapple them to thy soul with hoops of steel.”
But then, above the din of the jet engines, came a more familiar and more insistent voice. It was that of Jane Fahey, my Irish grandmother, who for some reason seemed 33,000 feet closer than usual: “Show me your company, and I’ll tell you who you are!” she would say, often – very often. I think my grandmother would be as pleased with my “company” as I am – and as grateful.
This piece first appeared at ConsortiumNews.com.
Boing Boing has published an excerpt from Molly Sauter’s new book, The Coming Swarm, on Distributed Denial of Service attacks and the way the U.S. government has used the Computer Fraud and Abuse Act to portray the attacks as much more dangerous than merely virtual sit-ins. Sauter details the wide disparity in sentences between CFAA or online fraud convictions and physical sit-in trespassing misdemeanors.
As Sauter writes, the German case of Andreas-Thomas Vogel provides a model for how to recognise the political nature of these acts of civil disobedience online. She explains the case:
Andreas-Thomas Vogel … ran the libertad.de website during the 2001 Deportation Class action against Lufthansa Airlines. Vogel had posted a call to action on libertad.de and was arrested on charges on coercion. Initially in 2005, a lower court in Frankfurt found Vogel guilty of using force against Lufthansa, based predominantly on the economic losses the airline had suffered during the campaign, both in terms of lost sales and the costs of acquiring additional bandwidth to soak the protesters’ traffic. Vogel was sentenced to either pay a fine or serve 90 days in jail.
This is essentially the logic that U.S. courts have adopted, though under the CFAA, the penalties are much more severe. The PayPal 14, activists who allegedly launched DDoS attacks against PayPal and other online banking companies in response to those companies freezing WikiLeaks’ assets and incoming donations, were charged under the CFAA, which carries a 10-year prison sentence.
Pierre Omidyar, eBay founder who sat on PayPal’s board at the time of the financial blockade on WikiLeaks, muddied the logical waters further, writing,
If we want to make parallels between real-world protests and online protests, that means that one thousand people can have the effect of six million people demonstrating in front of your office. That seems like an excessive impact in the hands of each person. It’s like each protester can bring along 6,000 phantom friends without going to the trouble of convincing each of them to take an afternoon off and join the protest in the street.
But if financial institutions are allowed to block funds to a legitimate news organisation simply because the U.S. government doesn’t like them, and that action takes place online, protests against those institutions will take place online if they’re to have any impact.
German courts recognised this in the Vogel case, and their reasoning is exemplary:
a higher court overturned the verdict, finding, “. . . the online demonstration did not constitute a show of force but was intended to influence public opinion.” [1] Libertad responded to the ruling with a statement: “Although it is virtual in nature, the Internet is still a real public space. Wherever dirty deals go down, protests also have to be possible.”
As Sauter writes,
The Vogel case was the first international precedent to recognize the legal and philosophical arguments put forth by supporters of DDoS activist actions. The court decision pivots on the point that these actions were oriented to influence the public, and through that avenue, influence the actions of the Lufthansa corporation, rather than badgering the airline into conceding to a set of demands. Specifically, the judge ruled that the protest was not an action of force intended to compel an action from Lufthansa; the action’s intention was to impact public opinion first.
Sauter says, “There has been no such precedent-setting case thus far in the US courts.” In fact, U.S. courts have reversed the German reasoning: not only is this not protected speech, it’s something the U.S. wants to stamp down on harder than it would if it were a physical sit-in, to set an example. The government has sided with Omidyar’s argument, giving corporations the gift of the CFAA to punish virtual activists, having a far greater impact than those activists could ever hope for. “When used to prosecute activist DDoS actions,” Sauter writes, “the CFAA directly gives the targets of protest the ability to extort payments from activists for their dissent and disruption. When coupled with the innovative reality of online activism, the CFAA literally renders the internet a space where you can be charged hundreds of thousands of dollars for participating in a collective protest.”