Edward Snowden

The Guardian, which has been publishing stories containing disclosures from NSA whistleblower Edward Snowden, hosted a Q&A with Snowden online. Snowden addressed various smears and questions.

Snowden declared in his closing comment, “Thanks to everyone for their support, and remember that just because you are not the target of a surveillance program does not make it okay. The US Person / foreigner distinction is not a reasonable substitute for individualized suspicion, and is only applied to improve support for the program. This is the precise reason that NSA provides Congress with a special immunity to its surveillance.”

6:25 PM The prosecution will be suspending its case until Wednesday next week. There will be no trial Wednesday, Thursday, Friday or Monday. This is happening so that 17 stipulated testimonies can be agreed upon. There will be argument on any outstanding issues related to stipulated testimonies on Tuesday, June 25.

So, tomorrow there will be argument over evidence objections the defense has raised. After this argument and a possible ruling, the court will be in recess until next week.

5:55 PM EST CWO4 Rouillard testified during defense cross-examination that if a soldier wanted to download all the emails from a brigade that soldier could. There is no directive that says “you can’t download email addresses off the global address list.”

“If I wanted to download all the email addresses from the US Army, would it be against the rules?” Cpt. Dooman of the defense asked on redirect. Rouillard answered, “No, sir.”

5:10 PM EST  Second witness—Chief Warrant Officer 4 Armond Rouillard—took the stand. The defense challenged whether he could be a witness, who would testify on the monetary value. The defense essentially won, as no testimony was offered on the monetary value when the prosecution cross-examined. Rouillard conceded he had no knowledge of supply, demand or nature of information and how that might contribute to the value of the list. This was important because the count related to the “stealing” of the list asserts the list was worth more than $1000.

5:00 PM EST  First live witness — Chief Warrant Officer 4 Ronald Nixon — took the stand. He testified on the global address list of email addresses, # of email addresses it contained and what kind of access officers had to the list. Apparently, two four-star generals’ names were on the list. It had at least 24,000 addresses.

Peter Van Buren commented: GAL was just email addresses, most of which were Iraq-theatre specific and defunct now. Why is the government making an issue of it?

He added: If unclassified GAL, hardly anyone used that email in my experience. Why? Because you can send unclassified email on a classified system, so why use two?

Van Buren was a State Department employee who was stationed at FOB Hammer, where Manning worked as an analyst.

3:40PM EST  The global address list (GAL) in Iraq, which prosecutors believe that Manning downloaded, had two 4-star generals in Iraq on it. The day’s first live witness, Ron Nixon from CYBERCOM, testifies on the GAL.

3:25 PM EST  Manning was transferred to work in a supply room at Forward Operating Base Hammer on May 8, 2010, after an incident that occurred in the intelligence facility where he had been working as an analyst.

In the room, he worked for Staff Sgt. Peter Bigelow helping with the movement of supplies, photocopying and “running messages to other sections.” He also had hours during the day that he did not have tasks to do, so he would read books or “surf the Internet.”

Bigelow had stipulated testimony entered into the record on Manning’s use of a non-classified Internet Protocol (NIPR) network computer in the supply room. He did not search for any articles on cross-dressing or for info on Julian Assange or WikiLeaks.

3:24 PM EST Katherine Strobl, a software developer and US Central Command contractor, had stipulated testimony on her review of CIA wire logs entered into the record. She examined logs between October 2009 and May 2010. At one point, as Maj. Ashden Fein was reading this, both Manning and his defense attorney, David Coombs, appeared to be holding back smiles or even laughs as they covered their faces with the palm of their hands.

This was because Fein nearly read a list of log information with numbers and characters that would have been utterly meaningless to the judge. The judge stopped Fein. He insisted on reading them so she had them read only a small part of the logged information.

3:22 PM EST Louis Traviaso had stipulated testimony entered into the record. As a specialist who reviewed intelligence for the Defense Intelligence Agency (DIA), he served on the Information Review Task Force (IRTF). Traviaso examined what the documents contained on military weapons and systems capabilities. One paragraph of it was not read by the prosecution presumably because it was classified.

3:20 PM EST Testimony from Vice Admiral Harword contained the following distinctions: TOP SECRET information is information that will cause “exceptionally grave damage.” SECRET information is information that will cause “serious damage.” CONFIDENTIAL is information that will cause “damage.”

Harword stated detainee assessment briefs (or “Gitmo Files) were “summaries” of data or information classified at the SECRET level. They contained details on “circumstances of capture,” what the detainee “had in possession upon capture,” activities in support of terrorist organizations, information about persons in other organizations, as well as “methods and approaches for collecting intelligence.”

2:22 PM EST Rear Admiral David Woods and Jeffrey Motes, who entered testimony on the “Gitmo Files,” both admitted that there had been “open source material” available. “Extensive litigation” had taken place where records related to the Combatant Status Review Tribunals and Administrative Review Boards were released. The records publicly available were not considered when assessing the information and sources for intelligence exposed.

2:20 PM EST Stipulated testimony: Vice Admiral Harward, a deputy commander of US Central Command, said US CENTCOM relies on two classification categories: military plans, weapons systems or operations and intelligence activities, including covert action, sources or methodology and cryptology.

1:29PM EST  Jeffrey Motes,, a senior counter terrorism analyst in a strategic fusion cell of the J2 section of JTF-GTMO, and Rear Admiral David Woods, reviewed the detainee assessment briefs. Their stipulated testimony was entered into the record. Both stipulations read, “Detainees may not know the extent of what the U.S. knows about his background information,” but since the U.S. does not always learn about this from the detainee himself, “detainees may not know the extent of what the US knows” about them.

11:34PM EST  Proceedings finally about to resume. I think there’ll be a ruling from the judge on the admissibility of the 2009 WikiLeaks “Most Wanted” list.

Numerous stipulations of testimony are expected in military court at Fort Meade during the seventh day of Pfc. Bradley Manning’s trial. The focus of testimony will be the detainee assessment briefs Manning confessed to disclosing to WikiLeaks on Guantanamo prisoners.

According to information provided to reporters by a military legal matter expert, stipulated testimony from “Mr. Motes” and “Rear Admiral Woods”  concerning the detainee assessment briefs or “Gitmo Files” will be entered into court.

A witness from US Central Command (CENTCOM) and Network Command (NETCOM) are expected to testify on a global address list that the prosecutors have charged Manning with stealing, purloining or knowingly converting the list for his use or the use of another. The prosecutors have put a value on the list, asserting it was worth more than $1000.

Manning did not plead guilty to releasing the global address list on February 28 when he read a statement in court. He did, however, admit to releasing the “Gitmo Files.”

He thought that it was likely individuals being detained by the Iraqi Federal Police, which he suspected of torturing prisoners, might be turning detainees back over to US custody and they might be “ending up in the custody of Joint Task Force Guantanamo.”

As Manning read over the documents, he became more “educated on the topic.” He stated, “It seemed that we found ourselves holding an increasing number of individuals indefinitely that we believed or knew to be innocent, low level foot soldiers that did not have useful intelligence and would be released if they were still held in theater.” He agreed with President Barack Obama, who said that Guantanamo Bay diminished America’s “moral authority” and “compromised” America’s “standing” in the world.

He assessed the documents and noticed “they were not analytical products.” Rather, they “contained summaries of tear line versions of interim intelligence reports that were old or unclassified.” They did not contain “names of sources” or “quotes from tactical interrogation reports.” They were being sent to the US Southern Command commander and contained “very general background information” on each detainee, “not a detailed assessment.”

*

The Center for Constitutional Rights is in federal court in Baltimore for oral argument in a federal lawsuit where journalists and press organizations are seeking contemporaneous access to documents in the court martial. I, along with Amy Goodman, Glenn Greenwald, Jeremy Scahill, Julian Assange and Chase Madar, are plaintiffs in the lawsuit.

Shayana Kadidal has said the military has adopted a policy of “mock openness” at the court martial. The military gives just enough access so it is difficult to argue they are violating press freedom entirely, but they limit openness enough to frustrate reporters who are trying to accurately cover proceedings. For example, all throughout the pretrial process there was no access to records. During the first days the trial, the US Army finally released the majority of the pretrial documents, but they did it when reporters were least likely to cover the nuances of what happened during the pretrial phase because they were now into the trial.

Kadidal also told Firedoglake that he was struck by the fact the military had not even made a show out of trying to fix access issues ahead of the trial when they knew “media would show up in droves.” They should believe there is an incentive to have people believe “this is a legitimate trial,” but they really “screwed it up by not fixing the more grotesque errors.” They had a fiasco with press passes during the first week and it “made the system look sort of farcical.”

Thomas Drake (Creative Commons-licensed photo by Project on Government Oversight)

A main criticism of National Security Agency whistleblower Edward Snowden, who disclosed information on secret surveillance programs, is that he did not go through the proper channels before going to the press with classified information.

Jeffrey Toobin for The New Yorker argued that America’s system “offers legal options to disgruntled government employees and contractors. They can take advantage of federal whistleblower laws; they can bring their complaints to Congress; they can try to protest within the institutions where they work. But Snowden did none of this.”

Steven Bucci, former deputy assistant secretary of defense under President George W. Bush, wrote, “Individuals who suspect wrongdoing in government have legitimate options to bring this to the attention of responsible individuals in government and Congress without breaking the law.” But, “Mr. Snowden decided it was fine to break the law, and he should be called to account for it.”

University of Chicago law professor Geoffrey Stone asserted that Snowden “should have presented his concerns to senior, responsible members of Congress. But the one thing he most certainly should not have done is to decide on the basis of his own ill-informed, arrogant and amateurish judgment that he knows better than everyone else in government how best to serve the national interest.”

On MSNBC’s “Andrea Mitchell Reports” on June 10, Jeremy Bash, a former chief of staff to secretary of defense Leon Panetta, asserted, “If you have a complaint, you go through this process. You talk to your supervisor. If you don`t trust your supervisor, you go to the inspector general. If you don`t trust the inspector general, you can go to Congress. There are multiple ways to make your concerns heard. Running for China is not one of them.”

What if Snowden had gone to Congress? What if he had gone to an inspector general? What if he had not gone to the press and gone public with what he was seeing as a Booz Allen Hamilton contractor working for the NSA?

Everything Given to Congress Likely to End Up in a “Black Hole”

Thomas Drake, who also exposed the NSA’s massive secret surveillance programs and what the NSA should have known prior to the September 11th attacks, told Firedoglake, “Everything I passed on to Congress it just went into a black hole.”

In regards to the 9/11 investigation, he said, “It was as if my material witness testimony never existed. It was not just censored. It was snuffed out. There’s no indication or record that I was ever interviewed.” That is because NSA reviewed the final reports of both the 9/11 congressional investigations and they were able to say something was “state secrets” and remove it entirely.

According to Jesselyn Radack, director of national security and human rights at the Government Accountability Project, Drake, along with NSA employees Bill Binney, Ed Loomis and Kirk Wiebe, went to Sen. Ron Wyden and Sen. Mark Udall to brief them on secret surveillance programs.

“We provided information to the same effect of what PRISM does,” Radack told Firedoglake. “We briefed them and they politely listened and kind of nodded their heads. And didn’t disagree and listened for hours and it was a long meeting and nothing happened because they obviously were only willing to go so far in saying there’s a secret legal interpretation that’s really dangerous.”

Also, had Snowden gone to Congress, he might have had to clear it with a public affairs office. Radack suggested it essentially amounts to a “gag order,” and would have been a “complete killer of anything meaningful” being shared with Congress.

It is also possible, depending on who he tried to contact in Congress, that the representative or senator would not have been able to receive classified information if they did not have the proper security clearance. Plus, many members of Congress have no interest in becoming truly informed on these issues to stick their neck out and provide oversight; fifty-three senators chose not to attend a classified briefing on secret government surveillance programs last Thursday that many had never been informed about before.

Department of Defense Inspector General Gave Up Four NSA Whistleblowers to the Justice Department

Binney, Drake, Loomis and Wiebe all tried to call attention to what they wanted to expose internally. They made complaints to the Department of Defense inspector general (IG) and the IG turned around and “gave up the names of all four whistleblowers to the Justice Department for criminal prosecution.”

“They totally sold the witnesses they were supposed to be protecting down the river,” Radack said. They all became “targets of federal criminal investigation. Drake was prosecuted for espionage.”

Drake said the channels are there. The IG is the “office of primary responsibility for those who want to bring something of issue.” However, the IG is in the chain of command under the director. “They’re beholden to the agency’s chain of command,” which makes the NSA a “hostile environment for bringing any kind of information that would make them look bad.”

The Department of Defense eventually substantiated Drake’s claims, but they immediately classified the report so no one knew why exactly he was blowing the whistle.

Drake further recounted, “I had one of the most senior analysts at NSA who came to me with a report that had been done many, many months earlier. It was a long-term report on al Qaeda’s associated movements. He was beside himself after 9/11 because that report had never been distributed to the rest of the community.” The NSA withheld publication and distribution.

Internally, Drake said he was flagged early on for raising issues within NSA. He experienced “all kinds of bureaucratic and administrative reprisals” starting as early as late fall of 2001.

Obama Has Sought to Protect Whistleblowers—Except for Those in National Security or Intelligence Agencies

Then, there’s the reality that “whistleblower protections that exist on paper for national security employees or contractors are slim to none,” according to Drake.

Radack noted, “What most people don’t know is the normal whistleblower protection laws specifically exclude national security and intelligence employees. That includes the Whistleblower Protection Enhancement Act, which was passed under President Obama. Obama was the one who did not want them to be covered.

“Likewise, his presidential directive that spoke about whistleblowers also excluded national security and intelligence whistleblowers,” Radack added.

It is, therefore, really disingenuous for anyone arguing on behalf of the government to argue someone should have used “proper” internal channels. All possible channels are intentionally closed off.

“All Of the Efforts We Made Just Produced No Change Whatsoever”

Binney told USA Today during a roundtable discussion with Drake, Radack and Wiebe:

We tried to stay for the better part of seven years inside the government trying to get the government to recognize the unconstitutional, illegal activity that they were doing and openly admit that and devise certain ways that would be constitutionally and legally acceptable to achieve the ends they were really after. And that just failed totally because no one in Congress or — we couldn’t get anybody in the courts, and certainly the Department of Justice and inspector general’s office didn’t pay any attention to it. And all of the efforts we made just produced no change whatsoever. All it did was continue to get worse and expand.

He added that he thought Snowden had seen and “read about what our experience was, and that was part of his decision-making.”

“I don’t want anyone to think that he had an alternative. No one should (think that),” Wiebe said during the discussion. “There is no path for intelligence-community whistle-blowers who know wrong is being done. There is none. It’s a toss of the coin, and the odds are you are going to be hammered.”

The “Radioactive Option,” According to Drake

Snowden probably would have preferred not to go to the press. From experience, Drake said this is the “radioactive option.”

“The last thing you would is go to the press,” he stated. “One thing to raise your concerns within the system and cooperate with investigations as a material witness, it’s a whole other thing to invoke the radioactive option and go to the press. That is career suicide.”

But, Radack acknowledged that going to a media organization like The Guardian or Washington Post is far better than posting the documents independently on some website.

“If we were advising someone in that position, rather than having them put up documents themselves, we definitely would go to a reputable journalist, which Glenn Greenwald certainly is, and say, ‘This is what’s going on,’” she said. “That happens every day. That’s how reporters get their stories.”

Nowadays, a national security or intelligence whistleblower could go to a media organization and the organization could sit on the information and not publish. They might contact the government before publishing too. Both acts make it more likely that an agency’s actions or misconduct, which the whistleblower is seeking to expose, would be found out before the public was able to see what he or she was trying to reveal to the world.

Margaret Sullivan, public editor for The New York Times, recounted in a Sunday column how the Times held a story on NSA warrantless wiretapping at the behest of the administration of President George W. Bush. Eric Lichtblau, one of the reporters who worked on the story, had to sit and watch as he and his editors “’waited anxiously in an elegantly appointed sitting room in the White House’ to be greeted by officials including the secretary of state, Condoleezza Rice, and the White House counsel, Harriet Miers.”

“Would Mr. Snowden want to risk another 13-month delay?” Sullivan asked.

Snowden had seen an op-doc produced by filmmaker Laura Poitras on Binney called “The Program.” But, he was, according to Poitras, worried about “mainstream media” and “particularly what happened with the New York Times and the warrantless wiretapping story, which as we know was shelved for a year.”

Additional Thoughts

As should be abundantly clear, it is next to impossible to go through proper channels within government and blow the whistle without facing retaliation where one is fired or forced out of an agency. Congress members are likely to ignore or politely listen but decline to act upon the information that is brought to their attention. That means the best hope government employees in national security and intelligence agencies have for exposing programs or policies that the public should know about is going to the press.

The problem is often the policies or programs whistleblowers are seeking to expose have become normalized and entrenched. In the case of NSA surveillance, President George W. Bush legalized the kind of programs or policies Snowden exposed. Then-Senator Obama voted for retroactive immunity to the telecommunications companies that participated in warrantless wiretapping. And, AT&T, which actively enabled the operations of NSA so the agency could monitor phone call information and Internet traffic, was a major donor to Obama’s 2008 and 2012 presidential campaigns and the Democratic National Conventions.

Though the programs likely violate the Fourth Amendment principles that government should follow, the courts toss out lawsuits claiming those challenging surveillance programs as unconstitutional or illegal have no standing because they cannot prove they have been victims of secret surveillance. So, that has further enabled the Congress and Executive Branch to cooperate together and expand the national security apparatus in such a way that there are few boundaries it must adhere to when “protecting” so-called national security.

Ultimately, this is what drives institutional apologists like Toobin to write of Snowden, “In an act that speaks more to his ego than his conscience, he threw the secrets he knew up in the air—and trusted, somehow, that good would come of it.” It’s what inspires Bucci to suggest, “These leaks never occur without repercussions. One hopes that any damage to the nation’s security does not cause loss of life. Some Americans may lionize Snowden, but there are terrorists who surely do.” And, it was what leads reputable lawyers like Stone to assert, “The rule of law matters, and no one gave Edward Snowden the authority to make that decision for the nation. His conduct was more than unacceptable; it was criminal.”

Not only are they purely or willfully ignorant and misunderstand how the government has consciously sought to suppress and deter conscientious employees in national security or intelligence agencies from blowing the whistle, but they also do not think the information warrants a blowing of the whistle.

In adopting this attitude toward whistleblowers, they enable the national security state to operate in total secrecy and use classification to, as Drake described, “bury, hide and obfuscate.” They help to ensure that the only discussions about laws, policies and programs related to national security are ones permissible or sanctioned by the government. They condemn and smear the very kind of people who most want to come to the media organizations that amplify their voice and provide scoops for news stories.

A nation more conducive to unaccountability and criminal acts is, thus, encouraged, all because of a perverse and twisted notion of what it means to be a whistleblower.

Judge Army Col. Denise Lind (Courtroom sketch by Clark Stoeckley)

With the identity of Edward Snowden, the whistleblower behind disclosures on National Security Agency top secret surveillance programs, forming a backdrop that dominated the news, Pfc. Bradley Manning’s trial entered its second week. 

Another whistleblower, who the military has aggressively prosecuted for releasing US government information to WikiLeaks, the trial received minimal attention from media this week. The number of reporters in the media center was down to around ten. Both The Guardian and the New York Times were missing in action.

The following are some of the significant developments that occurred in the trial against the soldier who released US government information to WikiLeaks.  

*

—Defense supports crowd-funded stenographers’ presence at the trial 

“We believe that this enforces Pfc. Manning’s Sixth Amendment right to a public trial and also impacts on a First Amendment right for the press to accurately keep track of what happens in the court-martial,” defense attorney David Coombs declared on June 10.

The Freedom of the Press Foundation (FPF) raised tens of thousands of dollars to send stenographers to the trial to produce transcripts, since the United States military refuses to make transcripts available. They submitted a letter to military judge Army Col. Denise Lind on the first day of the trial that was supported by major media organizations. The letter requested press passes to allow professional court stenographers access to the media room” so they could “transcribe the public portions of the court martial.”

The judge said, “In light of the public interest in this case, in light of the unique circumstances of this case, in light of the assertion by PFC Manning that this stenographer procedure will further his rights to a Sixth Amendment right to a public trial and also obviously further the public’s First Amendment right to a public trial, the court has ordered the government to arrive at some kind of accommodation to allow stenography of the proceedings of this trial.”

—Army Counterintelligence Center senior analyst testifies on center’s report on WikiLeaks

Sheila Glenn, a senior analyst with the cyber counterintelligence assessment branch, testified on her role in the production of an Army Counterintelligence Center (ACIC) report in 2008 titled, “Wikileaks.org—An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?” The report was disclosed to WikiLeaks by Manning and was self-initiated, meaning a few analysts thought it might be good to have a report on this potential “threat.”

The prosecution had Glenn read the following: “It must be presumed that Wikileaks organization have or will receive sensitive or classified documents in the future. It must also be presumed that foreign adversaries will review and assess any DoD or classified information posted on the Wikileaks.org website.”

When the defense cross-examined her, she admitted the analysts could only “presume” but not “confirm” that the website was used by foreign intelligence, foreign military services, foreign insurgents or terrorist groups to collect sensitive or classified US Army information. She played a game of semantics saying, “Not necessarily that I don’t know for sure. I cannot confirm the source is accurate,” but did concede, “We couldn’t confirm it at that time that they visited Wikileaks.”

And, at one point, Glenn read for the record that the impact of releasing this report would be “insight into a successful asymmetric warfare tactic technique and protection operation against US forces and coalition forces.”

 —No connection between Manning & Jason Katz, who has been investigated by the Grand Jury into WikiLeaks

David Shaver of the Army Computer Crimes Investigative Unit (CCIU) conducted forensic examinations of an employee of Brookhaven National Laboratory, Jason Katz, who prosecutors have alleged was somehow involved in the release of a Garani air strike video. Shaver performed forensics,  looked at emails and searched the hard drive of Katz’s computer for anything related to Manning. He did not find any emails or chats.

“And in fact your investigation revealed absolutely no connection whatsoever between Jason Katz and my client??” defense attorney Captain Joshua Tooman asked. “That is correct,” Shaver answered.

Katz was investigated by the FBI and subject of a grand jury empaneled in Alexandria, Virginia. He is believed to have been involved in working to decrypt a video for WikiLeaks. The video on his computer has been known to not match any video that Manning ever disclosed.

Shaver also testified that none of the logs he reviewed contained any proof that Manning transmitted the Granai video in November 2009. The testimony that Manning has no connection to Katz and that he did not transmit a video in November 2009 undermines the prosecution, which has tried to make it seem that Manning immediately started working on behalf of WikiLeaks when he first deployed to Iraq.

—Apache pilot CWO5 Jon LaRue stipulates “Collateral Murder” revealed tactics, techniques & procedures to adversaries

An Apache helicopter pilot, who reviewed the video of a 2007 Apache helicopter attack on Baghdad that Manning disclosed and WikiLeaks released as the “Collateral Murder” video, stipulated in testimony that the video contained tactics, techniques and procedures (TTPs)—”sensitive Army aviation information.”

He reviewed the video and found that the AH-64D digital display or “high-action display” in the video “shows the use of a laser for ranging, altitude and air speed. The laser also shows angles of engagement. The ranges and attack approaches are TTPs.” And, according to LaRue, “Adversarial forces who know TTPs could be able to anticipate United States operations and the adversarial forces will be able to plan more effective attacks as a result.”

“The high action display also shows the heading tape, which reveals the sensor and the sensor’s acquisition of targets and other information,” according to his testimony. “This display of the sensor in action could be used to determine the limitations of the sensor’s capabilities. Based on my experience and training, the sensor’s capabilities are sensitive Army aviation information. The sensor also reveals the position of the helicopter during an operation, which could be used to determine more aspects of TTPs. TTPs are a puzzle, and revealing any piece could make solving the puzzle easier for an adversary.”

This is the video where US soldiers gun down two Reuters employees, a Good Samaritan pulling up in a van, who is trying to save the wounded and then also wound two children inside the van. And Manning said in his statement in court on February 28, “The most alarming aspect of the video to me, however, was the seemly delightful bloodlust they appeared to have.”

—Prosecutors face objections from the defense as they try to use an Acceptable Use Policy Manning did not sign against him 

During cross-examination of Cpt. Thomas Cherepko, a Brigade Automations Officer in Manning’s unit, prosecutors attempted to use a sample Acceptable Use Policy (AUP) Manning had not signed as they elicited testimony on whether Manning exceeded authorized access on his computer.  The defense objected because three of the counts Manning faces “rise and fall” on whether he violated the AUP.

Manning is accused of “knowingly” exceeding “his authorized access on a Secret Internet Protocol Router network (SIPRNet) computer” in Specification 2 and Specification 3 to “obtain information” that was classified. These are both alleged violations of the Computer Fraud and Abuse Act (CFAA). (Note: Specifications are like counts.)

It was one of the more contentious moments in the trial so far and took place on June 12. To read more about the scene that unfolded in military court, go here.

*For more on the trial, visit Firedoglake.com’s hub for coverage. For the book I co-wrote with Greg Mitchell of The Nation on the Bradley Manning case, go here.

“Rejected NSA Poster” by sortofbreakit via Flickr

As the nation’s leading whistleblower protection and advocacy organization, the Government Accountability Project (GAP) would like to be clear about its position on each of the following points that relate to these significant revelations:

I. SNOWDEN IS A WHISTLEBLOWER.

Snowden disclosed information about a secret program that he reasonably believed to be illegal. Consequently, he meets the legal definition of a whistleblower, despite statements to the contrary made by numerous government officials and security pundits. Sen. Rand Paul (R-Ky), Sen. Mark Udall (R-Co), Rep. Loretta Sanchez (D-Ca), Rep. Thomas Massie (R-Ky), and Sen. Bernie Sanders (I-Vt) have also expressed concern about the potential illegality of the secret program. Moreover, Rep. Jim Sensenbrenner (R-Wi) who is one of the original authors of the Patriot Act – the oft-cited justification for this pervasive surveillance – has expressed similar misgiving.

II. SNOWDEN IS THE SUBJECT OF CLASSIC WHISTLEBLOWER RETALIATION.

Derogatory characterizations of Snowden‘s personal character by government officials do not negate his whistleblower status. On the contrary, such attacks are classic acts of predatory reprisal used against whistleblowers in the wake of their revelations.

Snowden’s personal life, his motives and his whereabouts have all been called into question by government officials and pundits engaged in the reflexive response of institutional apologists. The guilty habitually seek to discredit the whistleblower by shifting the spotlight from the dissent to the dissenter. Historically, this pattern of abuse is clear from behavior towards whistleblowers Daniel Ellsberg, Mark Felt, Frank Serpico, Jeffrey Wigand, Jesselyn Radack, and recent NSA whistleblower Tom Drake.

III. THE ISSUE IS THE MESSAGE AND NOT THE MESSENGER.

As a matter of course, whistleblowers are discredited, but what truly matters is the disclosure itself. Snowden’s revelations have sparked a public debate about the balance between privacy and security – a debate that President Obama now claims to welcome. Until Snowden’s disclosures, however, the government had suppressed the facts that would make any serious debate possible.

IV. PERVASIVE SURVEILLANCE DOES NOT MEET THE STANDARD FOR CLASSIFIED INFORMATION.

Many have condemned Snowden for disclosing classified information, but documents are classified if they reveal sources or methods of intelligence-gathering used to protect the United States from its enemies. Domestic surveillance that is pervasive and secret is only a valid method of intelligence gathering if the country’s enemies include most of its own population. Moreover, under the governing Executive Order it is not legal to classify documents in order to cover up possible misconduct.

V. THE PUBLIC HAS A CONSTITUTIONAL RIGHT TO KNOW.

In a democracy, it is simply not acceptable to discover widespread government surveillance only after a whistleblower’s revelations. Because of Snowden’s disclosures we now know that Director of National Intelligence James Clapper deliberately misled the Senate Intelligence Committee when he stated on March 12, 2013 that the NSA did not purposefully collect any type of data from millions of Americans. Regardless of the justification for this policy, the public has a Constitutional right to know about these actions.

Unfortunately, the responsibility has fallen on whistleblowers to inform the public about critical policy issues – from warrantless wiretapping to torture. Whistleblowers remain the regulator of last resort.

VI. THERE IS A CLEAR HISTORY OF REPRISAL AGAINST NSA WHISTLEBLOWERS.

By communicating with the press, Snowden used the safest channel available to him to inform the public of wrongdoing. Nonetheless, government officials have been critical of him for not using internal agency channels – the same channels that have repeatedly failed to protect whistleblowers from reprisal in the past. In many cases, the critics are the exact officials who acted to exclude national security employees and contractors from the Whistleblower Protection Enhancement Act of 2012.

Prior to Snowden’s disclosures, NSA whistleblowers Tom Drake, William Binney and J. Kirk Wiebe, all clients of GAP, used internal mechanisms – including the NSA chain of command, Congressional committees, and the Department of Defense Inspector General – to report the massive waste and privacy violations of earlier incarnations of the NSA’s data collection program. Ultimately, the use of these internal channels served only to expose Binney, Drake and Wiebe to years-long criminal investigations and even FBI raids on their homes. As one example, consider that Tom Drake was subjected to a professionally and financially devastating prosecution under the Espionage Act. Despite a case against him that ultimately collapsed, Drake was labeled an “enemy of the state” and his career ruined.

VII. WE ARE WITNESSING THE CRIMINALIZATION OF WHISTLEBLOWING.

During the last decade, the legal rights for whistleblowers have expanded for many federal workers and contractors, with the one exception of employees within the intelligence community. The rights of these employees have significantly contracted. The Obama administration has conducted an unprecedented campaign against national security whistleblowers, bringing more Espionage Act indictments than all previous administrations combined.

Moreover, at the behest of the House Intelligence Committee, strengthened whistleblower protections for national security workers were stripped from major pieces of legislation such as the Whistleblower Protection Enhancement Act (for federal employees) and the National Defense Authorization Act of 2013 (for federal contractors). If those protections existed today, Snowden’s disclosures would have stood a greater chance of being addressed effectively from within the organization.

The actions already taken against Snowden are a punitive continuation of what has become a “War on Whistleblowers.” Through a series of retaliatory measures, the federal government targets federal employees who speak out against gross waste, illegality, or fraud, rather than prosecuting individuals engaged in high crimes and misdemeanors. So far as we know, not one person from the NSA has yet to suffer any consequences for ordering, justifying or participating in the NSA’s domestic spying operation.

It is the opinion of GAP that recent events suggest the full might of the Department of Justice will be leveled at Snowden, including an indictment under the Espionage Act, while those who stretched their interpretation of the Patriot Act to encompass the private lives of millions of Americans will simply continue working.

VIII. IN THE SURVEILLANCE STATE, THE ENEMY IS THE WHISTLEBLOWER.

If every action has an opposite and equal reaction, the whistleblower is that reaction within the surveillance state. Dragnet electronic surveillance is a high-tech revival of tactics used to attack the civil rights movement and political enemies of the Nixon administration. Whistleblowers famously alerted the public to past government overreach, while helping to defend both national security and civil liberties.

In contrast, secrecy, retaliation and intimidation undermine our Constitutional rights and weaken our democratic processes more swiftly, more surely, and more corrosively than the acts of terror from which they purport to protect us.

TIME cover for June 24, 2013 issue

Forty-six percent of Americans, according to an Ipsos/Reuters poll, do not know whether the NSA contractor Edward Snowden, who disclosed information on top secret surveillance programs, is a patriot or a traitor. They probably do not know if he is a whistleblower either, but, perhaps, they are interested in more information so they could decide.

Enter TIME magazine.

The magazine, which made “The Whistleblowers” the publication’s “Person of the Year” in 2002, has cast Snowden as part of a young generation of individuals who represent “something new.” These are “young people [who have] come of age in the defiant culture of the Internet.”

This “new” breed of individual, according to TIME, are also people like Pfc. Bradley Manning, who has confessed to disclosing United States government information to WikiLeaks and is on trial at Fort Meade, and Aaron Swartz, the Internet activist who committed suicide while the US Justice Department was zealously pursuing a prosecution of him for liberating documents from an academic database called JSTOR. And, they are labeled “The Informers.”

Jesselyn Radack, who heads the national security and human rights division of the Government Accountability Project and defends whistleblowers, reacted, “All three of these people were trying to either make information publicly available for more people to see or expose government crimes.” She added what TIME is doing is “equating whistleblowing to spying, which is pure propaganda.”

The story is titled, “The Geeks Who Leak,” a reference to the fact that these individuals come from a culture that has embraced hacktivism:

…[A]mong Snowden and Manning’s age group, from 18 to 34, the numbers are much higher, with 43% saying Snowden should not be prosecuted. That hacktivist ethos is growing around the world, driven in large part by young hackers who are increasingly disrupting all manner of institutional power with online protest and Internet theft. “That’s the most optimistic thing that is happening–the radicalization of the Internet-educated youth, people who are receiving their values from the Internet,” said Julian Assange, the founder of WikiLeaks, in an April interview with Google executive chairman Eric Schmidt. “This is the political education of apolitical technical people. It is extraordinary.”

But, this conflates all young people who are skeptical of authority and institutions with those who are willing to engage in online protest or “Internet theft” and “hack” into systems or confront government agencies and powerful companies online.

It hypes the threat of hacking to present an argument that there are a strain of youth willing to break the law, as if the country does not have a historical tradition of civil disobedience.

Michael Scherer writes:

More than 1.4 million Americans now hold top-secret security clearances in the military and the shadow world of intelligence. Most do not contact reporters and activists over encrypted e-mail in hopes of publishing secrets as civil disobedience. Few are willing to give up their house, their $122,000-a-year job, their girlfriend or their freedom to expose systems that have been approved by Congress and two Presidents, under the close monitoring of the federal courts. Snowden is different, and that difference is changing everything. [emphasis added]

In truth, Snowden is no different than Russ Tice, a former intelligence analyst at the NSA who was a source for a 2005 New York Times story on warrantless wiretapping by the NSA. Mark Klein, a former AT&T technician who revealed in May 2006 that AT&T was working with the NSA to spy on Americans’ communications, or Daniel Ellsberg, the Pentagon Papers whistleblower who revealed top secret information about the Vietnam War and what really led America to start it. [*Here's a list of others, who have blown the whistle and defied authority or what was the norm inside of a company or institution.]

Outside of whistleblowers, there are people who have protested like women, African-Americans, lesbian, gay, bisexual and transgendered (LGBT), immigrants, environmentalists, etc, because they believed what had been acceptable culturally and systemically was worth challenging so that future generations could live a better life—one free of the injustices, discrimination or government policies they endured.

Scherer presents Snowden, Manning and Swartz as extremist or absolutist privacy advocates. It characterizes them as extremist or absolutist transparency advocates. It fails to properly examine the post-9/11 context in which they have developed this idealism, where they desire a society that is more respectful of privacy rights or the circumstances of excessive government secrecy, which would lead to young people wanting information to be free.

Then, there is this particular paragraph:

Manning’s statement is a radical one, since it directly undermines the rule of law, something both men seemed to recognize. “When you are subverting the power of government, that’s a fundamentally dangerous thing to democracy,” Snowden said of his actions. And in official Washington, the broad consensus is that the impulse is dead wrong and likely to cause real harm. “What this young man has done, I can say with a fair amount of certainty, is going to cost someone their lives,” said Georgia Republican Saxby Chambliss, who is vice chairman of the Senate Select Committee on Intelligence. Neither the Obama White House nor the leaders of either party are much concerned about the legality or the effectiveness of the sweeping data-collection programs; both sides, however, seemed quite keen to track down Snowden and bring him to justice. The public, according to a new TIME poll, echoed that impulse, with 53% of Americans saying Snowden should be prosecuted, compared with just 28% who say he should be sent on his way.

Anyone reading it would get the idea that Americans do not approve of these people, who think it is okay to defy the law. Manning believes it was acceptable to “undermine” the rule of law and even Snowden admits that what he did is dangerous to democracy. However, Scherer cherry-picked a quote and altered the meaning.

Here is what Snowden said, when interviewed by The Guardian‘s Glenn Greenwald, who wrote stories on his disclosures:

The public is owed an explanation by the people who make these disclosures that are outside the democratic model. When you are subverting the power of government, that is a fundamentally dangerous thing to a democracy and, if you do that in secret consistently, as the government does when it wants to benefit from a secret action it took, it’ll kind of give its officials a mandate to go, hey, tell the press about this thing and that thing so the public is on our side. But, they rarely, if ever, do that when an abuse occurs. That falls to individual citizens, but they’re typically maligned. It becomes a thing of these citizens are against the country, but I’m not…

Snowden was talking about officials who go to the press undermine democracy by not explaining their motivations for disclosing information on secret programs or policies that they know will be beneficial or make government look good. He recognized that this is an abuse of authority and did not want to do the same, which is why he came forward and explained his motives in an interview with Greenwald.

Furthermore, by labeling these individuals “informers” they become people whom the government would be justified in prosecuting under the Espionage Act.

Scherer suggests:

The government, meanwhile, is likely to treat Snowden as if he was a Cold War spy seeking to undermine the country he still claims to serve. The Justice Department has launched an investigation into the disclosure of classified information, a prelude to a standard espionage prosecution. Even though charges may not be filed for weeks, it is likely that prosecutors will try to extradite Snowden to the U.S. for trial and seek a punishment of life in prison.

What Scherer omits is how prosecuting leakers or whistleblowers as spies is a new development. The administration of President Barack Obama has prosecuted a record number under the Espionage Act, a World War I-era law that was not intended for deterring the release of classified information to the press but to go after spies who aided enemies or provided information that could advantage a foreign nation.

One would think if the magazine was going to present these people as “informers,” which has connotations similar to spies, they would have given this a closer look. But, the magazine accepts a given that Snowden will be treated as a “Cold War spy,” as if that would not be troubling but routine.

As I wrote previously, journalists like Scherer ignore or disregard the fact that the government has carved out national security exceptions to protect power from disclosures that Snowden made by ensuring that he can be prosecuted, jailed and effectively silenced no matter how he makes disclosures.” They also are perfectly willing to give voice to those in power who support zealous prosecution of these individuals for periods that exceed the length of time they would ever advocate for torturers, war criminals or those who commit felonies in violation of laws intended to protect individual rights and liberty in the United States.

They have no problem with the arrogation of power in the Executive Branch so they will produce journalism intended to rationalize the functions and expansion of the national security state. When confronted by individuals who challenge national security policies and programs, they display unbounded contempt for individuals who they think have arrogated the power to act as truth-tellers and inform the public of information they believe the public has a right to know.

In this case, TIME goes beyond putting these individuals’ personal flaws under a microscope and typecasts them as “the 21st century mole,” who “demands no payments for his secrets.”

Media organizations like TIME are also far too willing to divide and conquer, to choose who is a real whistleblower and who is not based on the public or political reaction. Manning is not a whistleblower, but Ellsberg is a whistleblower. Even though Ellsberg considers Manning a whistleblower, that means nothing because to explore how Manning is a classic whistleblower would be an affront to the establishment and powerful, which they need to maintain access and influence.

If this is how Americans understand these people, not only does it further chill confidential sources who wish to disclose information that is in the public interest to the press, but it effectively curtails the ability of media organizations to perform their role as the Fourth Estate, which is supposed to fulfill a watchdog function and check the power of all branches of government. It enhances the ability of government to manufacture consent for policies and programs that force Americans to give up liberty whenever someone shouts “Terrorist” or claims it is on behalf of national security without any proof whatsoever that it will be required to make the country safer

Finally, the biggest problem is that this is agitprop material masquerading as serious informative journalism. If one is not familiar with the stories of recent whistleblowers or do not understand issues around secrecy, transparency and leaks, the average person is not going to realize that it is disinformation.

Courtroom sketch of Major Ashden Fein and other prosecutors at Ft. Meade by Clark Stoeckley

During trial proceedings for Pfc. Bradley Manning on Wednesday, his defense objected to the use of a sample Acceptable Use Policy (AUP) he had not signed, which the prosecution wanted to use to elicit testimony on whether Manning exceeded his authorized access on his government computer.

It was one of the more contentious moments of the trial so far. At one point, defense attorney David Coombs was standing to the side of the lectern in the courtroom while two military prosecutors, Cpt. Hunter Whyte and Maj. Ashden Fein, stood behind the lectern trying to make their case to the judge about the legitimacy of this sample AUP.

Coombs stated in military court at Fort Meade that the defense was objecting because three of the counts Manning faces “rise and fall” on whether he violated the AUP.

He is accused of “knowingly” exceeding “his authorized access on a Secret Internet Protocol Router network (SIPRNet) computer” in Specification 2 and Specification 3 to “obtain information” that was classified. These are both alleged violations of the Computer Fraud and Abuse Act (CFAA). (Note: Specifications are like counts.)

It also could apparently be a factor in proving another specification that alleges Manning had “unauthorized possession of information relating to the national defense”—a video file that prosecutors claim was in a Farah investigation folder on US Central Command, which Manning willfully communicated without authorization in violation of the Espionage Act.

The sample AUP did make it into evidence for identification purposes, but, based off the objections of the judge, it is unclear how much weight it will be given, if any.

For more on what has been transpiring in the trial, here are the Freedom of the Press Foundation’s transcripts.

Military prosecutors do not have the AUP that he signed before using the systems at Forward Operating Base Hammer in Baghdad, where he was stationed. His unit lost the document. His unit also lost a copy of the AUP that Cpt. Cherepko, a Brigade Automations Officer who was tasked with “maintenance and management of the brigade’s network.”

No copy of any AUP signed by other officers in Manning’s unit exists either. That is because it was, according to Cherepko, “When the network was turned off, they were burned.”

The documents were “destroyed,” which is why, as Maj. Ashden Fein declared in court, the United States was “offering to the best” of Cherepko’s memory a sample AUP that would aid him in remembering was in the AUP “when it existed.”

But, that still did not satisfy why no officer secured a copy of an AUP for a future court martial.

While cross-examining Cherepko, Coombs asked if Manning’s ability to access the SIPRNet at been limited at some point. It had been limited on the “night that he was detained” at the end of May 2010 in FOB Hammer. No one asked for a copy of a standard AUP that soldiers like Manning had signed to keep on record.

The prosecutors, to coverup up for the fact that they did not secure an exact copy of a critical piece of evidence, decided to use the sample AUP in an army regulation called AR25-2 that controls or regulates information assurance and information security. They wanted to use a sample that was not the same length as the AUP Manning signed and did not have the same terms that Manning signed.

Coombs failed to persuade military judge Army Col. Denise Lind when trying to prevent the government from using the sample AUP. It would not be used as the AUP Manning had signed, but it could be used for “illustrative purposes.”

The prosecution proceeded and this exchange occurred as Cpt. Hunter Whyte cross-examined Cherepko on the sample AUP:

WHYTE: Can you please explain to the court how this sample, to the best of your memory, compares with the actual AUP that you signed at FOB Hammer?

CHEREPKO: It’s similar. It may not look identical, but the content is similar.

WHYTE: Your Honor, we offer Prosecution Exhibit 94 as the next Prosecution exhibit.

Coombs further objected:

…In this instance, I don’t know if the witness actually read the amount of time. This seems to be similar meaning. It looks like an AUP and there might be some similar terms, but to offer this into actual evidence in this case it has no relevance to this case here because it’s not what my client signed for one.

Even though the witness does have personal knowledge of the AUP that was signed in this instance all it’s saying it’s similar. Most of the time it might go to weight instead of admissible,  but in this instance, because of the fact that the terms actually matter, what is relevant is the actual terms of AUP…

Additionally, allowing the prosecution to use this document would be “prejudicial” and confuse the actual issues, “that is what are the terms that Pfc. Manning had to abide by while he was deployed.”

With both Coombs and Whyte standing on the courtroom floor, the judge sustained the objection. “If you want to go through the document paragraph by paragraph and talk about the witness, since he’s coming from memory what he remembers the actual AUP said, I’ll listen,” she said.

Immediately after, they tried to have this sample AUP admitted into evidence again and Coombs objected. The judge told the prosecutors they had to go paragraph by paragraph to prove it was similar before it would be admitted. The prosecutors called a recess out of frustration.

* 

When proceedings resumed after a short recess, Cherepko testified, “To the best of my memory the content was very similar. The sample until 25-2 covers what needs to be in an acceptable use policy and to the best of my memory the content and the subject matter is very similar.”

Cherepko looked over the paragraphs in the sample and said that the “intent” of the paragraphs was similar. One outlined that soldiers should understand it was their responsibility when on the unclassified or classified networks to “follow the rules and not make any unauthorized modifications, changes or do anything to circumvent security.” Another indicated soldiers were not to introduce “software to the network or to a system.”

Manning was not authorized to install software, Cherepko said. He was not authorized to install Wget, a program that could be used to speed up downloads of information which Manning used to pull documents from the SIPRNet.

After Whyte concluded, Coombs had an opportunity to fully cross-examine the witness. He pressed Cherepko on how he could possibly remember the AUP Manning signed was similar to this sample AUP. He was not reading it on a “daily basis” nor was he “in charge of briefing other people on the AUP” to have them sign it. He did no reviewing of the document ever. He was basing all of his statements on what he remembered reading in the document back in 2009—three to four years ago.

Coombs showed Cherepko a Fort Drum installation AUP that was used when soldiers in Manning’s unit redeployed from FOB Hammer. The two were quite a bit different, according to Coombs.

Then, this exchange happened:

COOMBS: Now, even within the AUP, the one term that the government had you look at with, you know, I will not add malicious code or whatnot, had a phrase in there without authorization, correct?

CHEREPKO: I believe so, sir. I don’t recall what it said but yes.

COOMBS: You don’t recall something you just read a few minutes ago?

CHEREPKO: Yes, sir.

COOMBS: Okay. So do you need me to refresh your memory on something you read a few minutes ago?

CHEREPKO: No, I’m fine. We’re good.

COOMBS: So, again, did it say without authorization in it?

CHEREPKO: On the sample AUP, sir?

COOMBS: Correct.

CHEREPKO I would, if you could refresh me that would be great.

COOMBS: I’ll be glad to.

The manner and tone of Coombs was a combination of condescension and disbelief. Coombs pounced because the prosecutors had maintained in front of the judge that he was capable of remembering something he signed years ago but yet he could not remember a document that prosecutors put in front of him for cross-examination minutes ago.

One should expect these sort of shenanigans throughout the entire trial. The military judge has given a lot of leeway to the prosecution and, to a slightly lesser extent, the defense. The prosecutors have taken advantage of this, while at the same time expecting the military judge will be more stringent toward the defense.

In fact, early in the proceedings on the same day, the prosecutors tried to prevent the defense from using a forensic report put together by Mark Johnson, a Computer Crimes Investigative Unit (CCIU) investigator, by arguing it consisted of “out-of-court statements” and was also “made solely for the purposes of this litigation.” They claimed it contained hearsay. Fein argued it was created “specifically for this court-martial, not necessarily in the regularly conducted business of Mr. Johnson.”

Lind overruled the objection. “It’s made as part of the regular cours of regularly conducted business activity of this entity,” she stated.

For more on what has been transpiring in the trial, here are the Freedom of the Press Foundation’s transcripts. And, for Firedoglake’s complete coverage, go here.

He shares, “I don’t believe that Edward Snowden, the leaker of all this secret material, is some heroic whistleblower. No, I believe Snowden is someone who needed a whistleblower. He needed someone to challenge him with the argument that we don’t live in a world any longer where our government can protect its citizens from real, not imagined, threats without using big data — where we still have an edge — under constant judicial review. It’s not ideal. But if one more 9/11-scale attack gets through, the cost to civil liberties will be so much greater.”

Friedman is arguing that there will be even fewer civil liberties and people like Snowden concerned with threats to freedom will find society will be even worse if another “9/11-scale attack” happens. He also is melodramatically setting up this dream fantasy where Snowden could be talked down so he did not reveal information on secret surveillance practices (which the editorial board of the newspaper he writes for thinks should never have been secret).

Though Friedman has developed a reputation as a hack, he is a hack who represents a dominant strain of commentators who have a lot of influence and power in the US media. He is one of the most eminent pre-fascist pundits in the country, trumpeting his subservience to the national security state and challenging individuals who challenge its expanding power while at the same time highlighting dictatorships in countries abroad which he finds to be wretched. [Pre-fascist because the country is not a fascist state, however, the increased power of national security agencies are gradually moving the US closer to being one.]

As Friedman professes in the column, “I’m glad I live in a country with people who are vigilant in defending civil liberties. But as I listen to the debate about the disclosure of two government programs designed to track suspected phone and e-mail contacts of terrorists, I do wonder if some of those who unequivocally defend this disclosure are behaving as if 9/11 never happened — that the only thing we have to fear is government intrusion in our lives, not the intrusion of those who gather in secret cells in Yemen, Afghanistan and Pakistan and plot how to topple our tallest buildings or bring down U.S. airliners with bombs planted inside underwear, tennis shoes or computer printers.”

The invocation of terrorists or the enemy is made to convince Americans that they should accept restrictions on their freedoms.

Not only does Friedman (like other media commentators) believe that these restrictions should be accepted, one gets the sense that there are no limits to the restrictions that he thinks should be accepted so long as those in power assert or claim they are helpful in preventing terrorist attacks.

Government does not need to be transparent and provide incontrovertible proof to the public that the chipping away at freedoms actually does make the country safer. It just has to openly claim this is the case. That enables and encourages authoritarianism.

Like Joe Klein of Time, Friedman has not experienced any civil liberties violations as a result of this surveillance so the concerns expressed by Snowden are insignificant to him.

“Yes, I worry about potential government abuse of privacy from a program designed to prevent another 9/11 — abuse that, so far, does not appear to have happened,” he declared. “But I worry even more about another 9/11. That is, I worry about something that’s already happened once — that was staggeringly costly — and that terrorists aspire to repeat.”

What he fears most is that Americans will tell members of Congress, “Do whatever you need to do to, privacy be damned, just make sure this does not happen again,” if another 9/11 happens and that will mark an end to open society.

That is why I’ll reluctantly, very reluctantly, trade off the government using data mining to look for suspicious patterns in phone numbers called and e-mail addresses — and then have to go to a judge to get a warrant to actually look at the content under guidelines set by Congress — to prevent a day where, out of fear, we give government a license to look at anyone, any e-mail, any phone call, anywhere, anytime.

This is hysterical nonsense in the form of a straw man argument intended to diminish any support for Snowden and aid the hyping of danger posed by the contents of Snowden’s disclosures.

He referenced an essay by David Simon, the creator of HBO’s “The Wire” that Simon wrote in reaction to Snowden’s disclosures to reinforce his view that the vast power of the national security state and its expansion are entirely justified because not to grant government agencies the power to intrude upon the lives of all people by sweeping their data up in massive surveillance programs would make America vulnerable to terrorists.

Friedman agrees with Simon that, “This kind of data collection has been a baseline logic of an American anti-terrorism effort that is effectively asked to find the needles before they are planted into haystacks, to prevent even such modest, grass-rooted conspiracies as the Boston Marathon bombing before they occur.” That is, it has become normalized, which means in both Friedman and Simon’s minds (as well as the minds of others) the activity should not be challenged because we have all decided to accept it.

While a vivid example, since Friedman has a flair for the melodramatic, it should be noted that slavery has been normal in society. It has been normal to discriminate explicitly against women, blacks, gay, lesbian, bisexual and transgender people and, in periods of history, various groups of immigrants perceived to pose threats to the United States.

What if this kind of argument had been made to justify discrimination or the subjugation of certain demographics of people? That it had become normal and acceptable to broad swaths of society?

The same could be said for pervasive surveillance. Just because citizens have conditioned themselves or been conditioned to accept it as normal, that does not make it germane, lawful or unquestionably constitutional.

Furthermore, as journalist Chris Hedges said on “Democracy Now!”, this hysteria about how this helps terrorists is lunatic:

I covered al-Qaeda for The New York Times, and, believe me, they know they’re being monitored. The whole idea that somehow it comes as a great surprise to jihadist groups that their emails, websites and phone calls are being tracked is absurd. This is—we’re talking about the wholesale collection of information on virtually most of the American public, and the consequences of that are truly terrifying. At that point, we are in essence snuffing out the capacity of any kind of investigation into the inner workings of power. And to throw out this notion that it harmed—this harmed national security, there’s no evidence for that, in the same way that there is no evidence that the information that Bradley Manning leaked in any way harmed national security. It didn’t. What the security and surveillance state is doing is playing on fear and using that fear to accrue to themselves tremendous forms of power that in a civil society, in a democracy, they should never have. And that’s the battle that’s underway right now, and, frankly, we’re losing.

This accruing of “tremendous forms of power” is not merely accepted but embraced by pundits like Friedman.

On May 13, 2013, the Associated Press announced that phone records of 20 lines in AP offices used by at least one hundred journalists were seized by the Justice Department for a leak investigation into the source who leaked information on a CIA underwear bomb plot sting operation in Yemen.

Less than a week later, it was reported by the Washington Post that the Justice Department had labeled Fox News reporter an “aider, abettor, and co-conspirator” in a leak allegedly committed by State Department contractor Stephen Kim so it could gain greater access to his private communications.

Altogether, this led to focus on how the investigations might chill investigative journalism because potential sources would not want to go to the AP or Rosen because they would be afraid the government might find out they communicated with them. Friedman, however, was not someone who focused on the implications of these investigations on journalism. The Times did, but he wrote no columns about it, and one could ask if that makes him complicit in government efforts to snuff out the capacity of press to investigate what Hedges called “the inner workings of power.”

Rep. Peter King, a Republican who is a frequent guest on news television programs, has now explicitly called for journalist Glenn Greenwald to be prosecuted. He’s called for journalists who publish classified information to be prosecuted, even though the United States has no law that specifically prohibits the publication.

How far is Friedman willing to go to prevent another 9/11 from happening? Is he for prosecuting those in his profession who publish classified information? Supporting King’s call would seem consistent with Friedman’s opinions on the need to protect the country from a situation where citizens would desire greater totalitarianism.

Finally, the framework for perpetual war—this notion that the “world is a battlefield”—gives government no boundaries. That includes surveillance. It enables there to be no programs or policies that cannot be justified by pointing out America is at war with an enemy. And, since those enemies are likely to continue to proliferate and metastasize just like the operations and powers of the national security state, it is inevitable that America keeps moving closer to being a fascist state, especially if people like Friedman who are key influencers of opinion in the establishment remain committed to defending the goodness of these operations and powers.

Special Agent Mark Johnson testifies. Pic by Clark Stoeckley.

6:47 PM EST Court is in recess until Monday. I’ll have more coverage of today’s proceedings tomorrow morning, especially what happened with the defense’s objection to the sample Acceptable Use Policy (AUP) the prosecutors had admitted as evidence and had Cpt. Thomas Cherepko, a Brigade Automations Officer in Manning’s unit, testify about.

4:46PM EST  Manning’s unit did not secure an Acceptable Use Policy (AUP) copy when the access privileges were limited, despite the fact that it could have been needed for court martial.

4:45PM EST  Coombs objected to introduction of sample AUP because it is different from what Manning signed; and three counts against him hinge upon the terms in AUP.

4:38PM EST  Prosecutors are trying to use an Acceptable Use Policy (AUP) that Manning did not sign to elicit testimony about terms he had to follow.

4:01PM EST  The judge allowed testimony on the rules and regulations from the Acceptable Use Policy for the information system Manning used, but which he’s not charged with violating.

3:06PM EST  Jon LaRue: “Range & attack approaches,” “sensitive aviation info,”  and “sensor capabilities” were the tactics, techniques & procedures (TTP) revealed in the “Collateral Murder” video. LaRue on “Collateral Murder” release: “Adversarial forces who know TTPs could be able to anticipate Army aviation operations”.  LaRue on “Collateral Murder” video: Sensor capabilities are a part of the puzzle. “Solving the puzzle could make it easer for any adversary”. LaRue on “Collateral Murder” video: The actual information isn’t classified. But “coupling video footage along with the data makes the information sensitive “.

3:00PM EST  CW5 Jon LaRue, Apache helicopter pilot: “Collateral Murder” video revealed tactics, techniques & procedures (TTP).

12:37PM EST  Defense clarified in open court that they were challenging the times and dates of the transmissions, not that they necessarily occurred.

12:35PM EST  The judge met with counsel to ask if the defense was challenging evidence of transmissions of information in addition to the Granai air strike video.

11:55 AM EST The government actually just tried to prevent a forensic report put together by Mark Johnson, a Computer Crimes Investigative Unit contractor tasked with investigation, from being admitted as evidence because it did not want the defense to be able to elicit evidence that would continue to undermine its case around the release of the Granai air strike video.

Defense wanted to examine what Johnson had found in relation to submissions to WikiLeaks. Prosecutors called the report “out of court” statements. When the defense tried to have it admitted under the business records exception, the prosecution still objected. Maj. Ashden Fein argued that it was “simply for the court martial, not necessarily” produced during “regularly conducted business.”  It was also “cumulative.”

Judge overruled “cumulative” objection. Fein added, “Although is forensic lab report, it was made solely for purposes of this litigation.”

The judge overruled objection to having it admitted under the business records exception. It was “made as part of regular conduct course of this business activity,” the judge said.

The prosecutors again objected to going over the report and referencing it as “cumulative.” The judge reacted, “Maj. Fein, the government’s been doing that throughout the trial.”

Original Post

The first witness to take the stand this morning in the trial of Pfc. Bradley Manning was Mark Johnson, a computer forensic examiner who works as a contractor for ManTech International.

The prosecution had Johnson testify on chat logs between Manning and a “pressassociation” Jabber account that prosecutors believe was used by WikiLeaks editor-in-chief Julian Assange.

Johnson said in these chats there were discussions of government information. “Specifically, they were mentioning Iceland, Iraq, Afghanistan and Gitmo.” They discussed WikiLeaks too.

Evidence of logs showing “several IP addresses” and URLs connecting to ports that are used by Secure Shell, “a protocol used for creating encrypted communications between one or more computers,” were admitted. Johnson said connections the Computer Crimes Investigative Unit (CCIU) examined “through Verizon communications” traced back to Bradley Manning’s aunt’s computer as well as PRQ, an Internet service provider in Sweden that Johnson said was “known to be associated with WikiLeaks.”

He found emails in Manning’s gmail account that were stored locally on his Macbook computer that indicated potential discussion of classified information. Johnson was able to decrypt some of them because he was able to crack a secret key because it was the same as the login password on his  Macbook.

Johnson was able to discover “discussions of classified information. “Specifically,” he testified that the discussions related to “Bradley Manning’s role in release of the ‘Collateral Murder’ video.”

There was an email between Manning and Eric Schmiedl, someone from the hacker scene, where information was discussed. During defense cross-examination, Cpt. Joshua Tooman had Johnson state that these emails came from May 19 and May 20. He told Schmiedl, “I approved the edits without reviewing the video”—a reference to the “Collateral Murder” video. They also discussed State Department diplomatic cables.

The prosecution had evidence admitted that showed “fragments of what appear to be references to WikiLeaks showing uploads of file fragments to the WikiLeaks page.” One file was Farah.rar, a possible compressed filed containing documents from the investigation into the Granai air strike that resulted in many civilian casualties in Afghanistan.

Image by Clark Stoeckley used with permission

6:00 PM EST Court proceedings for the day ended with prosecutors and defense continuing to go back and forth on whether Manning transmitted a video from a folder marked Farah investigation and, if so, when. Special Agent David Shaver created a lot of doubt about what actually happened, despite being a prosecution witness.

Perhaps, big takeaway of the day is that Jason Katz, employee of Brookhaven National Laboratory, who the prosecutors alleged had video from Farah investigation on his computer that was provided by Manning, cannot be connected to Manning in any way.

Katz has been subpoenaed to appear before the WikiLeaks grand jury. If he did help WikiLeaks with a video by decrypting it at the laboratory (as he was fired for violating security protocols at the lab), he did not decrypt a video from the Farah investigation provided by Manning. So, there’s no conspiracy.

5:57 PM EST The government wants to prove he transmitted the video in November because it would have been during his first weeks of deployment in Iraq and they are adamant about creating this perception in court that he was working as some kind of agent for WikiLeaks.

5:55 PM EST Prosecutors referenced chat logs between Manning and hacker Adrian Lamo to try and prove Manning had provided a video of the Granai air strike to WikiLeaks, but the defense asked Special Agent Shaver about a tweet WikiLeaks sent in January 8, 2010

5:30PM EST The press was informed by a Public Affairs Officer that it is wrong to display emotion when the prosecutors appear to be unable to prove Pfc Manning committed an offense as charged.

5:18 PM EST Special Agent David Shaver during cross-examination by the defense was asked to go over logs. Generally (and I’ll go into more detail soon), the defense proved that, as charged, Manning did not transfer a Granai air strike video on November 1, 2009.

3:36 PM EST The defense had Special Agent David Shaver authenticate a military incident report from December 24, 2009. It was not explicitly stated in open court, but the defense’s opening statement on June 3 indicated that Manning had been transformed by an incident that happened on this day.

From the transcript posted by Freedom of the Press Foundation:

A few minutes later came some additional news about that EFP, and the report indicated that as the lead element was driving down this road there was this civilian car in front of them, and that civilian car pulled over to the side, as was typical, to allow the convoy to go by, and they pulled over right in front of where that EFP was placed. The car had five occupants, two adults and three children. And that  EFP went right through that car and hit that lead element. All five of the occupants were taken to the hospital, one died en route.

1:38PM EST  Two of the witnesses—Peter Artale and Lt. Col. Thomas Hoskins—whose stipulated testimony was entered into the record in Bradley Manning’s trial today were, at one time, Booz Allen contractors.

1:36PM EST  Stipulated testimony on Iraq, Afghanistan reports were read into the record by the government as an attempt to establish that “national defense info” was released.

1:34PM EST   The Defense establishes that WikiLeaks was not described as exclusively focused on US or exclusively on classified information.

The fifth day of Pfc. Bradley Manning’s trial began this morning with two witnesses taking the stand to address an Army intelligence report produced on the “threat” of WikiLeaks that Manning accessed and disclosed. Two stipulations were entered into the record and read in open court.

Matthew Housburgh, a special intelligence system administrator for the Marine Corps, testified about attending a Chaos Computer Club conference in December 2009 and how he drafted a report after about the conference afterward. He attended to do research on potential security threats, and it also seemed he thought the military might benefit from hearing how hackers engage in information or operational security). He said it was an opportunity to attend a conference that might “show some security vulnerabilities we could apply to our command.”

He was present for the presentation WikiLeaks editor-in-chief Julian Assange delivered to an audience of close to 1000 people. Housburgh said he explained “what WikiLeaks was and the launch of their new site,” as well as “their intentions” and what their system would provide. Also, Housburgh said they were soliciting support from the audience for anyone listening to leak information that included not only classified information but also “proprietary secrets.”

The defense, in continuing to poke holes in this argument that Manning would have known terrorists would go to WikiLeaks for US government information, asked if his report had suggested that they use any specific website for open source collection. Housburgh answered that there was nothing specifically mentioned in the report on the conference. In general, they did not specifically highlight how the terrorists use the Internet to “gather open source reporting.” The warnings about the Internet only involved how terrorists could use an open Internet for communication.

Peter Artale, employed by the Army Counterintelligence Center and a contractor for Booz Allen Hamilton for one year with the National Geospatial-Intelligence Agency, had stipulated testimony entered into the record. According to Artale, he was notified on March 17, 2010, of the compromise of information. An Army Counterintelligence report on WikiLeaks had been accessed.

Lt. Commander Thomas Hoskins, an F-18 pilot who was deployed in combat operations in Iraq and Afghanistan and also worked for Booz Allen as a maritime planner, had stipulated testimony entered into the record with regards to military incident reports from Afghanistan and the investigation into the Farah air strike that resulted in over a hundred civilian casualties. He also had mobilized to CENTCOM to help with “country-to-country actions” with the US Embassy in Yemen on plans for “security cooperation.”

He reviewed 40 documents that were compromised and provided. Twenty-one were military incident reports. They contained military information on “deploying response forces,” “reporting the effectiveness of IED attacks,” the “locations of improvised explosive devices (IEDs), which would be known to the enemy,” “tactics, techniques and procedures for responding to IED attacks,” “sources and methods for intelligence agreements,” “anticipated enemy reactions” as well as information on local foreign nationals providing help with the locating of suspects. And, with regard to the Farah investigation, he said files contained graphics “showing troop movements.”

Stipulated testimony from Lt. Col. (Ret.) Martin Nehring was entered into the record. He had worked for CENTCOM and reviewed military incident reports from Iraq and the Farah investigation files that were compromised. The military incident reports contained information on general-type IED attacks, “types of vulnerabilities of locations,” “details of movements of US friendly forces,” fragmentary orders (FRAGOS), “project plans or protection services related to national security,” “limitations of US forces in the combat area,” “reports on IEDs and TTPs in response,” interactions between local leaders and the military on array of topics, troop locations and weapons locations and equipment used, TTPs for “detecting and responding to IED attacks,” capabilities of US Forces, the personal information for kidnapped service members and the TTPs for responding and locating service members.

Fifty-three reports from Iraq were apparently reviewed by Hoskins and, in addition to the above, they showed the “threat of attack in an area by a specific group,” revealed a previous reliable source of intelligence, “reported locations of IED attacks,” identified code words, friendly action, multiple enemy group names, reported lack of or loss of equipment, identified an enemy target name, detailed the arrest of a suspect and the detention of a suspect, as well as reported on “stated planned unit movements” and reported enemy casualties.

The Farah investigation files that were reviewed contained “operational activities including troop movements and weapons systems.”

What is important to know is that the Farah investigation files were never disseminated widely by WikiLeaks and the contents are not public. The files were just accessed and compromised.

Also, all of the military information the two witnesses reviewed would have been from before 2009. When the incident reports from Afghanistan and Iraq were published by WikiLeaks in July 2010, or October 2010, some of this information would no longer have been intelligence that could be used by any enemies or terrorists for attacks. So, while this all seems like military information one would not want to disclose because it would pose a risk to troops or military forces engaged in operations, it is important to contextualize this testimony by acknowledging this information was all historical.

Photo by hragv released under Creative Commons License