In one of his final opinions as a Supreme Court Justice, Hugo Black in the 1971 Pentagon Papers case wrote that “The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government.” The Court’s 6-3 decision granted the Washington Post and New York Times permission to resume publishing a comprehensive and classified government history of the Vietnam War. The permission was granted over the “national security” objections of the Nixon administration. Black’s opinion stressed that the “press was protected so that it could bare the secrets of government and inform the people.”
The Pentagon Papers case revolved around the more traditional press debate regarding prior restraint: if and when the government has the right to stop news organizations from disseminating sensitive information. The Supreme Court’s landmark 1931 media ruling, Near v. Minnesota, declared that almost all forms of prior restraint were unconstitutional. One of the few exceptions included issues of national security.*
Of course, the recent Obama administration controversies surrounding freedom of the press revolve around national security and the intense prosecutorial efforts by the government to weed out leakers of classified information. Rather than trying to stop journalists from reporting national security news, federal law enforcement seems preoccupied with snooping around, in increasingly clandestine ways, and ensnaring reporters in criminal investigations.
Whether it was the Department of Justice’s wild overreach in seizing phone records of more than 20 separate telephone lines used by Associated Press editors and reporters, or the Department’s more focused, yet even more troubling, information grab of a Fox News reporter, the practice is wrong and shortsighted. It’s also un-American.
The Founding Fathers had the foresight to carve out extraordinary privileges and protections for the press, and for centuries they have endured. So why now turn our storied First Amendment into the Sort Of First Amendment or the When It’s Convenient First Amendment?
Imagine what international observers must be thinking as they watch the U.S. government, in the name of leak investigations, chisel away at one of America’s most famous contributions to the democratic way of life: Freedom of the press.
Yet it’s also important to note that despite some of the heated rhetoric in recent days, there’s little evidence that the federal government is waging some sort of all-out war on journalism (that it’s “spying” on reporters), or that it’s set out a dangerous new policy to “criminalize” the craft. And no, Fox News certainly hasn’t been “targeted” by the Obama administration, despite Fox’s plaintive cries of victimhood in recent days. (There’s certainly no evidence to back up Shepard Smith’s baseless on-air claim that the Department of Justice “went into” Fox News computer servers and “pulled things out.”)
First Amendment alarms bells went off when it was revealed that Fox News’ James Rosen had been described as “at the very least, either as an aider, abettor and/or co-conspirator” in a 2010 FBI affidavit in support of warrant seeking permission to look through the reporter’s phone records as well as the contents of his Gmail account. The FBI was looking for correspondences with then-State Department security adviser Stephen Jin-Woo Kim, charged with leaking classified information to Rosen about North Korea in 2009.
Those First Amendment alarm bells were justified.
The Rosen warrant request appears to be the first time (that we know of) that the government singled out a journalist as a possible criminal during a leak investigation. In other words, it was the first time law enforcement in court proceedings suggested it was a crime to publish, or to try to obtain, classified information. (It is not.) The FBI’s targets in the past had always focused on the leakers, not those receiving the leaks.
And in the past, when law enforcement wanted to obtain phone records or other personal communications from journalists, they were supposed to issue narrow subpoenas after exhausting all other investigative avenues. (And only after the Attorney General personally approved of the move.) Prosecutors also notified the media company in question about the subpoena, unless notification threatened the integrity of the investigation.
Prior to the Washington Post story being published on May 20, Rosen knew nothing of the search warrant or that it had been acted upon. And that’s why the alarm bells sounded, and with good reason. The idea that federal law enforcement can simply grab a reporter’s private communication without the reporter or his news employer ever being notified — and without them given a chance to persuade a judge the stop the action (i.e. judicial relief) — is wrong and it’s dangerous and in the Rosen case it was unacceptable.
But also note that Rosen being unaware the FBI grabbed his emails was, in weird way, reassuring. It’s reassuring because despite the alarming wording of the warrant request (“abettor and/or co-conspirator”), no charges were ever brought against Rosen, and according to the FBI none are expected to be forthcoming.
Despite the disturbing language used in the single FBI warrant request, reportedly approved by Attorney General Eric Holder, the Rosen case not does appear to reflect a larger policy shift within the Department of Justice to “criminalize” reporting. Plus, there’s recent evidence to suggest the DOJ has declined to take drastic steps against the press during a national security leak investigation.
On May 17, The Smoking Gun reported that FBI counterintelligence agents had overseen a lengthy leak investigation after The Smoking Gun published a classified, 12-page CIA report detailing the organizing activities of al-Qaeda members imprisoned at Guantanamo Bay.
Thanks to a Freedom of Information Act request, the Smoking Gun learned:
The case remained open for three years and eight months, spanning the Bush and Obama administrations. It was formally closed in March 2010 when, after much internal debate, the Department of Justice’s Counterespionage Section declined to authorize a subpoena–sought by the FBI–compelling [The Smoking Gun’s] editor to testify before a grand jury about its source.
Faced with taking the extreme measure of forcing an editor to testify before a grand jury about the identify of a source, the DOJ declined, and instead closed down an unsuccessful leak investigation. If there really were a top-down administration attempt to “criminalize” national security reporting, wouldn’t that editor have been compelled to testify?
Right now though, that remains a small consolation.
In May of 1973, Shakur was in a car that was pulled over by police on the New Jersey highway. A shootout occurred, resulting in the deaths of her companion and fellow activist Zayd Malik Shakur and State Trooper Werner Foerster. Assata Shakur was wounded in the gunfight, having been shot twice. Accounts of what happened that night differ greatly — surviving Trooper James Harper (also wounded) claimed that Zayd Malik Shakur began firing when they asked him to step out of the vehicle whereas Assata Shakur attests that the police fired first, even after she had her hands in the air.
Shakur was convicted of Foerster’s murder and sentenced to a life in prison. In 1979, with the help of allies, she was able to escape from confinement and flee to Cuba where she still lives and calls herself a “20th century escaped slave.” Read more »
Filed under: Abusive Police, African-Americans, COINTELPRO, FBI, Political Prisoners, Racism,U.S., US Wars | Tagged: CIA, COINTELPRO, colonialism, escaped slave, ex-political prisoner, FBI,government repression, History of anti-imperialist/revolutionary movements, imperialism,International, internationalism, media, police, Political Prisoners, prisons, racial profiling, racism,slavery, solidarity, U.S., US Wars, war crimes, women | 1 Comment »
My name is Assata Shakur, and I am a 20th century escaped slave. Because of government persecution, I was left with no other choice than to flee from the political repression, racism and violence that dominate the US government’s policy towards people of color. I am an ex-political prisoner, and I have been living in exile in Cuba since 1984.
I have been a political activist most of my life, and although the U.S. government has done everything in its power to criminalize me, I am not a criminal, nor have I ever been one. In the 1960s, I participated in various struggles: the black liberation movement, the student rights movement, and the movement to end the war in Vietnam. I joined the Black Panther Party. By 1969 the Black Panther Party had become the number one organization targeted by the FBI’s COINTELPRO program. Because the Black Panther Party demanded the total liberation of black people, J. Edgar Hoover called it “greatest threat to the internal security of the country” and vowed to destroy it and its leaders and activists.
In 1978, my case was one of many cases bought before the United Nations Organization in a petition filed by the National Conference of Black Lawyers, the National Alliance Against Racist and Political Repression, and the United Church of Christ Commission for Racial Justice, exposing the existence of political prisoners in the United States, their political persecution, and the cruel and inhuman treatment they receive in US prisons. According to the report:
‘The FBI and the New York Police Department in particular, charged and accused Assata Shakur of participating in attacks on law enforcement personnel and widely circulated such charges and accusations among police agencies and units. The FBI and the NYPD further charged her as being a leader of the Black Liberation Army which the government and its respective agencies described as an organization engaged in the shooting of police officers. This description of the Black Liberation Army and the accusation of Assata Shakur’s relationship to it was widely circulated by government agents among police agencies and units. As a result of these activities by the government, Ms. Shakur became a hunted person; posters in police precincts and banks described her as being involved in serious criminal activities; she was highlighted on the FBI’s most wanted list; and to police at all levels she became a ‘shoot-to-kill’ target.”
I was falsely accused in six different “criminal cases” and in all six of these cases I was eventually acquitted or the charges were dismissed. The fact that I was acquitted or that the charges were dismissed, did not mean that I received justice in the courts, that was certainly not the case. It only meant that the “evidence” presented against me was so flimsy and false that my innocence became evident. This political persecution was part and parcel of the government’s policy of eliminating political opponents by charging them with crimes and arresting them with no regard to the factual basis of such charges.
On May 2, 1973 I, along with Zayd Malik Shakur and Sundiata Acoli were stopped on the New Jersey Turnpike, supposedly for a “faulty tail light.” Sundiata Acoli got out of the car to determine why we were stopped. Zayd and I remained in the car. State trooper Harper then came to the car, opened the door and began to question us. Because we were black, and riding in a car with Vermont license plates, he claimed he became “suspicious.” He then drew his gun, pointed it at us, and told us to put our hands up in the air, in front of us, where he could see them. I complied and in a split second, there was a sound that came from outside the car, there was a sudden movement, and I was shot once with my arms held up in the air, and then once again from the back. Zayd Malik Shakur was later killed, trooper Werner Foerster was killed, and even though trooper Harper admitted that he shot and killed Zayd Malik Shakur, under the New Jersey felony murder law, I was charged with killing both Zayd Malik Shakur, who was my closest friend and comrade, and charged in the death of trooper Forester. Never in my life have I felt such grief. Zayd had vowed to protect me, and to help me to get to a safe place, and it was clear that he had lost his life, trying to protect both me and Sundiata. Although he was also unarmed, and the gun that killed trooper Foerster was found under Zayd’s leg, Sundiata Acoli, who was captured later, was also charged with both deaths. Neither Sundiata Acoli nor I ever received a fair trial We were both convicted in the news media way before our trials. No news media was ever permitted to interview us, although the New Jersey police and the FBI fed stories to the press on a daily basis. In 1977, I was convicted by an all- white jury and sentenced to life plus 33 years in prison. In 1979, fearing that I would be murdered in prison, and knowing that I would never receive any justice, I was liberated from prison, aided by committed comrades who understood the depths of the injustices in my case, and who were also extremely fearful for my life. Read more »
Filed under: CIA, COINTELPRO, Colonialism, FBI, Government Repression, History of anti-imperialist/revolutionary movements, Imperialism, International, Internationalism, Media, Police,Political Prisoners, Political Prisoners, Prisons, Racial Profiling, Racism, Slavery, slavery,Solidarity, U.S., US Wars, WAR CRIMES, Women, Women | Tagged: escaped slave, ex-political prisoner, freedom fighter | 7 Comments »
Google Says the FBI Is Secretly Spying on Some of Its Customers
The terrorists apparently would win if Google told you the exact number of times the Federal Bureau of Investigation invoked a secret process to extract data about the media giant’s customers.
That’s why it is unlawful for any record-keeper to disclose it has received a so-called National Security Letter. But under a deal brokered with the President Barack Obama administration, Google on Tuesday published a “range” of times it received National Security Letters demanding it divulge account information to the authorities without warrants.
It was the first time a company has ever released data chronicling the volume of National Security Letter requests.
National Security Letters allow the government to get detailed information on Americans’ finances and communications without oversight from a judge. The FBI has issued hundreds of thousands of NSLs and has even been reprimanded for abusing them. The NSLs are written demands from the FBI that compel internet service providers, credit companies, financial institutions and businesses like Google to hand over confidential records about their customers, such as subscriber information, phone numbers and e-mail addresses, websites visited and more as long as the FBI says the information is “relevant” to an investigation.
In each year from 2009 to 2012, Google said it received “0-999″ National Security Letters.
But in its talks with the authorities over releasing figures, Google said national security was on the mind of the Obama administration.
“You’ll notice that we’re reporting numerical ranges rather than exact numbers. This is to address concerns raised by the FBI, Justice Department and other agencies that releasing exact numbers might reveal information about investigations. We plan to update these figures annually,” Richard Salgado, a Google legal director, wrote in a blog post.
Salgado was not available for comment.
What makes the government’s position questionable is that it is required by Congress to disclose the number of times the bureau issues National Security Letters. In 2011, the year with the latest available figures, the FBI issued 16,511 National Security Letters pertaining to 7,201 different persons. (.pdf)
Google said the number of accounts connected to National Security letters ranged between “1000-1999″ for each of the reported years other than 2010. In that year, the range was “2000-2999.”
Google noted that the FBI may “obtain ‘the name, address, length of service, and local and long distance toll billing records’ of a subscriber to a wire or electronic communications service. The FBI can’t use NSLs to obtain anything else from Google, such as Gmail content, search queries, YouTube videos or user IP addresses.”
Google often must disclose that data via other means, as described here.
Under the Patriot Act, Google or others who receive a NSL must disclose the sought-after information if the authorities say the request is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.”
National Security Letters are a powerful tool because they do not require court approval, and they come with a built-in gag order, preventing recipients from disclosing to anyone that they have even received an NSL. An FBI agent looking into a possible anti-terrorism case can self-issue an NSL to a credit bureau, ISP or phone company with only the sign-off of the special agent in charge of their office.
What’s more, the lack of court oversight raises the possibility for extensive abuse.
In 2007 a Justice Department Inspector General audit found that the FBI had indeed abused its authority and misused NSLs on many occasions. After 9/11, for example, the FBI paid multimillion-dollar contracts to AT&T and Verizon requiring the companies to station employees inside the FBI and to give these employees access to the telecom databases so they could immediately service FBI requests for telephone records. The IG found that the employees let FBI agents illegally look at customer records without paperwork and even wrote NSLs for the FBI.
That said, we should applaud Google for trying to be transparent on the issue, regardless of the Obama administration’s preposterous national-security concerns.
The FBI has been adamant about withholding information about their plans to ensure the government can access any encrypted emails or messages sent over the Internet, but now a federal judge says the agency needs to come clean.
US District Judge Richard Seeborg took the side of the Electronic Frontier Foundation this week in a case that’s been disputed back and forth between Pennsylvania Avenue and Silicon Valley for years. Washington hopes to eventually roll out a program that will see that the FBI and other federal agencies are allowed backdoor access to any and all online communications. So far, though, they’ve managed to make much of the so-called “Going Dark” program a matter that’s shielded from interested parties, namely the EFF and other Internet activists. On Tuesday, Judge Seeborg agreed with the plaintiffs that the Justice Department has been not exactly accommodating with Freedom of Information Act paperwork filed by the San Francisco-based non-profit, and said the FBI and other federal agencies will have to go back and reassess those requests, ordering a “further review of the materials previously withheld.”
The EFF has on at least two occasions filed FOIA requests for info on the secretive surveillance blueprints the FBI has drafted, but the response have been scant at best. Judge Seeborg now rules that the DoJ will have to examine their annals once again for information, as their responses to the requests so far have been insincere.
“T]he Government is directed to conduct a further review of the materials previously withheld as non-responsive. In conducting such review, the presumption should be that information located on the same page, or in close proximity to undisputedly responsive material is likely to qualify as information that in ‘any sense sheds light on, amplifies, or enlarges upon’ the plainly responsive material, and that it should therefore be produced, absent an applicable exemption,” the judge ruled, according to court papers first spotted by CNet.
The two requests in particular that will have to be reassessed relate to the Communications Assistance for Law Enforcement Act, a 1994 law that Judge Seeborg says was “designed to aid law enforcement efforts to conduct surveillance of digital telephone networks.” After nearly 20 years on the books, though, the EFF argues that law enforcement officers across the charts have wanted updated additions to the legislation, particularly because FBI Director Robert Mueller has told the US Senate as recently as September, “We must ensure that our ability to obtain communications pursuant to court order is not eroded,” because many companies “are not required to build or maintain intercept capabilities.”
We want to “be able to obtain those communications,” Mueller said during a May hearing on Capitol Hill. “What we’re looking at is some form of legislation that will assure that when we get the appropriate court order that those individuals — individual companies are served with that order do have the capability and the capacity to respond to that order.”
The EFF fears that the Justice Department is asking for amendments to the CALEA that
would “require all services that enable communications — including encrypted e-mail transmitters, social networking websites, and “peer to peer” messaging services — to be technically capable of complying with wiretap orders, including being able to intercept and unscramble encrypted messages.” What they actual are asking for remains up for debate, however, as those FOIA requests have been all but ignored.
When the Criminal Division of the DoJ decided to respond to the EFF, they said they found 8,425 pages of “potentially responsive information.” What they returned, however, was hardly that. “It ultimately released one page in full and 6 pages in part, and withheld 51 pages in full. DOJ also referred approximately 500 pages of potentially responsive information to other agencies for processing and possible production to plaintiff,” Judge Seeborg writes.
Both sides have been given 15 days by the judge to “meet and confer to negotiate a timetable for the FBI to complete” its revisions.
“It’s nice to have a court say the government can’t do that,” EFF staff attorney Jennifer Lynch tells CNet’s Declan McCullagh, adding that the judge’s ruling shows that the Justice Department now is required “to make an effort” to comply with the FOIA.