Some brief thoughts on the Bradley Manning verdict

Updated (7/30/13):  Added verdict chart. I can't speak to its accuracy, but looks about right on first blush.

Source

Earlier today, Col. Denise Lind found Bradley Manning not guilty on the top charge of aiding the enemy (which could have resulted in a life sentence), but guilty of most other charges (some of which he already pleaded guilty). I haven't followed the case all that closely, but I wanted to offer a few brief thoughts.

We don't yet know the detailed reasons for the not guilty charge, but I suspect it has something to do with the government's difficulty in proving that releasing materials to Wikileaks (or the public at large) isn't necessarily the same as giving it directly to the enemy. A fine point, perhaps, but it would seem to go to intent.

The charges that Manning previously pleaded guilty to are subject to a sentence of about 20 years. The additional guilty charges today subject him to over 100 years, even without the "aiding the enemy" charge. Whether or not she intended it, Col. Lind's decision comes off as a bit savvy because without the top charge, the court doesn't look like a rubber stamp for the government's case. On the other hand, Col. Lind has discretion to give Manning a significant sentence--given that he is subject to over 100 years, he could still get the equivalent of a life sentence. Possible, but perhaps less likely. What are the possibilities? In my estimation, ten to twenty years at the minimum, and quite possibly much more.

When will we know? Soon. The sentencing hearing begins Wednesday morning.

This verdict also raises the issue of the government's prosecutorial discretion and whether they reached too far on the "aiding the enemy" charge. It will certainly add to the criticism of the administration's aggressive use of Espionage Act prosecutions.

If you have additional questions, please don't hesitate to ask them in the comments or via Twitter.

NYT article on "secret subpoenas" misses the issue entirely

This article in the New York Times is, frankly speaking, terrible (emphases are mine):

THE news that federal prosecutors have demanded that the microblogging site Twitter provide the account details of people connected to the WikiLeaks case, including its founder, Julian Assange, isn’t noteworthy because the government’s request was unusual or intrusive. It is noteworthy because it became public.

For the Twitter request, the government obtained a secret subpoena from a federal court. Twitter challenged the secrecy, not the subpoena itself, and won the right to inform the people whose records the government was seeking. WikiLeaks says it suspects that other large sites like Google and Facebook have received similar requests and simply went along with the government.

This kind of order is far more common than one may think, and in the case of terrorism and espionage investigations the government can issue them without a court order. The government says more than 50,000 of these requests, known as national security letters, are sent each year, but they come with gag orders that prevent those contacted from revealing what the agency has been seeking or even the existence of the gag orders.

Let me rephrase the relevant parts into an explanation:

The government issued or obtained a secret subpoena (without a court order), known as a national security letter, to compel Twitter to provide the details of people connected to the Wikileaks case.

Uh, no. Not even close.

First, as both Christopher Soghoian and I have noted, it is not a subpoena, but a court order, and it makes a difference.

Second, as you can see below, the order is authorized by Title 18, United States Code, Section 2703(d).  National Security Letters are authorized by Title 18, U.S.C., Section 2709.  The difference is huge.  The Twitter court order (see below) is authorized by 2703(d) and signed by a federal magistrate.  Section 2709 National Security Letters are administrative subpoenas by the FBI and not signed by a magistrate or judge.

Third, there are distinct words in the order below:

...the Court finds that the applicant has offered specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought are relevant and material to an ongoing criminal investigation.

This is not just legal mumbo jumbo.  These words are carefully selected because they represent the legal standard required to issue a court order.  In fact, the "specific and articulable facts" standard of 2703(d) derives from the Supreme Court's decision in Terry v. Ohio, 392 U.S. 1.  A subpoena, even under 2703(d), would require a lower legal standard called reasonableness.

The entire article is based on the misunderstood claim that the Twitter court order is a National Security Letter administrative subpoena.  I am neither a lawyer, nor a journalist, but it doesn't take a genius to figure out that the New York Times misses the issue entirely.

Twitter 2703d Court Order

On defining "subpoena"

I'm working on something more substantive right now in relation to the Wikileaks / Twitter / court order situation, but for now I'll point you to Christopher Soghoian's post at his slight paranoia blog.  I don't necessarily agree with everything he says, but he attempts to cover the issue.

I do, however, have to raise an objection to his description of a subpoena.  He's trying to make the point that the media has referred to the court order as a subpoena when it is in fact a court order, because he thinks the distinction is relevant (and he's right).  He then goes on to define subpoena:

Subpoenas are essentially letters written by law enforcement officers, on official agency letterhead, and have not been reviewed or signed by a judge.

I contend that this is inaccurate, at least in part.  A subpoena is an order to compel testimony or produce evidence.  When it comes from a court, it is a judicial subpoena.  What he describes comes from an agency; it is an administrative subpoena (such as National Security Letters) that does not require a signature (but even then, the Patriot Act allowed for judicial oversight of NSLs).  So in fact it is important to distinguish between whether or not the subpoena originates from a court (judicial) or from an agency (administrative, the power of which must be expressly authorized by Congress).

A subpoena is considered the least intrusive method of obtaining information, so it has the lowest standard (what the courts call "reasonableness").  A court order requires that the government show "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation."  Note that a court order is considered more intrusive than a subpoena but less intrusive than a search warrant.  A search warrant is the most intrusive method, and requires probable cause.  With each higher method of intrusion, the government is required to meet a higher standard, but gains access to additional information.

Neither Chris nor myself are lawyers; so I guess we'll leave it to them to sort out. :-)

Why the Pentagon Papers case doesn't apply to Wikileaks

In deciding whether Wikileaks or the New York Times (or anyone else) can or should be prosecuted for publishing the leaked diplomatic cables, many people have made reference to the "Pentagon Papers" case regarding the New York Times attempt to publish the documents that Daniel Ellsberg leaked to the press regarding the Vietnam War.

The case in question is New York Times Co. v. United States, 403 U.S. 713 (1971).  The government cited 18 U.S.C. § 793-794 (otherwise known as the Espionage Act), in particular, section 793(e):

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it...

The key here is that the government sought to prevent publishing of the documents before it occurred.  This is an extraordinary rare restriction of the First Amendment called prior restraint.  In Bantam Books, Inc. v. Sullivan, 372 U.S. 58, the Supreme Court said: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."  Likewise, the Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971).

The Court in Near v. Minnesota, 283 U.S. 697 (1931) did leave open some exceptions when prior restraint might be acceptable--among them cases involving national security.  And this is precisely what the government relied upon in the Pentagon Papers case.  However, the Court found in New York Times Co. v. United States that the government ultimately failed to meet this burden, and publication was allowed to continue.

New York Times Co. v. United States was about prior restraint of free speech, not an open invitation to publish any material without regard for any outcomes.  Publishers are still subject to issues like libel; and realistically could still be subject to the Espionage Act or other similar laws.  Indeed, Justice White's concurrence (jointed by Justice Stewart) said:

[t]hat the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way...If any of the material here at issue is of this [classified] nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

Exactly! The burden of the government in these situations would clearly be less than those in a case of prior restraint.  On the other hand, this isn't to suggest that the government would inevitably prevail in such a circumstance.  Rather, the free-wheeling citations of this case in defense of Wikileaks are misguided precisely because they mistake the holding to be much broader than it truly is.

Why you have no free speech on the Internet

In the wake of the Wikileaks issue I have tried to argue that companies like Amazon are not bound by the First Amendment and have no obligation to protect anyone's presumed rights.  Likewise, individuals or organizations do not have the right to be hosted by any one company (or any company at all); accounts can be deleted or suspended for terms of service violations or no reasons at all.  The reason is because we as private individuals actually have little or no right to free speech on the Internet.

I came across an article today that described this concept much better than I could ever done.  While I am not sure that I agree with all of its conclusions, it makes the point that I have tried to very simply, so I will quote it at length:

The First Amendment is what everyone loves invoking. But of course the First Amendment begins with the words “Congress shall make no law.” And I didn’t see Congress passing any legislation here. Here’s the thing. Amazon is perfectly, legally justified in kicking customers off its service for any reason. They do have to realize that there are enormous PR implications when they do so. What Amazon is asserting here is that they are willing to remove content based on political pressure, or based on the perception of the offensiveness of that content.

What’s really hard about this is that we perceive the web to be a public space, a place where you should be able to go and set up your soapbox and say whatever you want to say to the world. The truth is, the web is almost entirely privately held. So what happens here is that we have a normative understanding that we should treat this like public space—that you should have rights to speak, that no one should constrain your rights—but then you discover that, basically, you’re holding a political rally in a shopping mall. This is commercial speech, controlled by commercial rules. My sense is that companies try really, really hard not to assert their corporate imperatives, and to say, ‘we’re going to silent speech,’ because that makes people really uncomfortable. But in this case, I think Amazon probably did a mental calculation and said, ‘if we don’t do this, we’re going to end up the subject of a boycott on Fox News, and that’s coming right before the Christmas season, we can’t afford that.’ I have no way of justifying that statement; that’s a speculation. But I understand why they might be concerned about this.

The emphasis is mine.  This passage is precisely the distinction I have been trying to make.  All of your accounts (Twitter, Facebook, etc.,) are held by private companies who can suspend or delete your account for any reason or no reason.  They are not violating your free speech rights, because you have no free speech rights in a private, commercial forum.  As Ethan Zuckerman describes in the above passage, Twitter and Facebook are like shopping malls; and they control the rules.  Have you ever seen those signs that prohibit photography in a shopping mall?  That's because the mall owner can regulate the activity in the mall, including preventing you from taking photographs.  You might think that's an infringement on your free speech, but you'd be wrong.  Lastly, your ISP can do the same thing and suspend or cancel your account for any reason or no reason at all.  You have the right to free speech, but that doesn't mean you have the right to Internet access or a Facebook or Twitter account.

This very post, on my soapbox, is contingent upon terms of service by my ISP and by Blogger/Google.  as much as I like to think it is me practicing my right of free speech, in reality it isn't.  If it somehow violated their ToS, or if they just didn't like me, they have every right to remove the post or suspend my account.  It would be similarly disappointing, but I couldn't sue them for violating my free speech and expect to win.

Update/clarification: After some further reading I guess I owe a bit of a clarification. It is certainly true that from the perspective of the government, your Internet speech is protected (ACLU v. Reno). But from the perspective of a private business, there is no such protection. I recognize this is a messy distinction, especially when a government "pressures" a business to do something or other, but it an distinction that exists nonetheless.

Update 2: This article by Brad Templeton discusses spam, but it touches on the same issues: "the collision between three important rights -- freedom of speech, the right to control private property and the right of privacy."

Misleading headlines, lack of understanding confuse Wikileaks issue

Have you seen this headline?

State Department To Columbia University Students: DO NOT Discuss WikiLeaks On Facebook, Twitter

It's been all over the news the past few days.  Read the comments.  Terrible, isn't it?  Well, no.  If you actually read the article, you'll see that this is a terribly inaccurate headline.  Within the article itself is a quote from State Department spokesman Phillip J. Crowley:

This is not true. We have instructed State Department employees not to access the WikiLeaks site and download posted documents using an unclassified network since these documents are still classified. We condemn what Mr. Assange is doing, but have given no advice to anyone beyond the State Department to my knowledge.

The article also explains the source of the warning:

An email from SIPA's Office of Career Services went out Tuesday afternoon with a caution from the official, an alumnus of the school. Students who will be applying for jobs in the federal government could jeopardize their prospects by posting links to WikiLeaks online, or even by discussing the leaked documents on social networking sites, the official was quoted as saying.

"[The alumnus] recommends that you DO NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter," the Office of Career Services advised students. "Engaging in these activities would call into question your ability to deal with confidential information, which is part of most positions with the federal government."

So there you have it.  A concerned alumnus, who is looking out for the future of these students, is trying to help them avoid a classified spillage incident by preventing an issue that could come up during a future clearance investigation.  This is actually good advice, but since most people don't read past the headline, it's a terrible article.

Back to Mr. Crowley's statement:

We have instructed State Department employees not to access the WikiLeaks site and download posted documents using an unclassified network since these documents are still classified. 

All or most government agencies (and many federal contractors) are telling their employees the exact same thing.  This isn't about preventing free speech, or preventing anyone from doing anything legal.  It is because, according to Executive Order 13526, Section 1.1(4)(c) states "Classified Information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information.”  So if you download a still-classified State Department cable onto your unclassified computer (home or work) from Wikileaks, you are in effect and in reality creating a security incident involving the spillage of classified materials.  This is a big deal.

New York Times hypocrisy on Climategate emails vs. Wikileaks cables

The New York Times on last year's Climategate emails:

The documents appear to have been acquired illegally and contain all manner of private information and statements that were never intended for the public eye, so they won’t be posted here.

Take note of that link: just two days ago (November 29, 2010) the author (Andrew Revkin) made an update to his post of over a a year ago (November 20, 2009) trying to explain what he meant, in hindsight. Clearly, the Times is sensitive to the issue of their own hypocrisy.

The New York Times on the illegally acquired Wikileaks cables, which clearly "contain all manner of private information and statements that were never intended for the public eye:"

The articles published today and in coming days are based on thousands of United States embassy cables, the daily reports from the field intended for the eyes of senior policy makers in Washington. The New York Times and a number of publications in Europe were given access to the material several weeks ago and agreed to begin publication of articles based on the cables online on Sunday. The Times believes that the documents serve an important public interest, illuminating the goals, successes, compromises and frustrations of American diplomacy in a way that other accounts cannot match.

The message goes on to say that they will actually publish some of the cables, too.  So yes, there you have it, hypocrisy at it's best.  The New York Times has not been relevant for years, so I guess we should have come to expect this by now.

Has Wikileaks run out of secrets?

From @obsequens via @jaysonstreet. This is a great article which deals with the content of the diplomatic cables released by Wikileaks, and concludes that:

Julian - this lot's rubbish...Not only is this material utterly trivial and inconsequential, but it looks as if it's already been heavily filleted. There really isn't anything to embarrass US-Russian relations, and revelations about Israel and Syria are conspicuous by their absence.

Read the entire article here.

Cablegate is more about Wikileaks (and Julian Assange) and less about the cables

Today, Wikileaks has begun to release some of the 251,287 embassy cables in their possession.  They won't say, but presumably these are all or some of the cables Bradley Manning illegally obtained while stationed in Iraq.

Wikileaks' Cablegate page says that:

[t]he embassy cables will be released in stages over the next few months. The subject matter of these cables is of such importance, and the geographical spread so broad, that to do otherwise would not do this material justice.

This is an interesting editorial comment on their part.  The material in these cables is so important that you, the well-read reader of the world, could not possibly comprehend them all at once.  Instead, we will feed them to you slowly, like a drug, so that Wikileaks can remain in the news as long as possible.  Because that's what this is all about, really.  If the material was that important, they'd release it all and let the world's media decide what is and isn't important.  Why risk a time delay, the possibility that their website goes offline and all the material doesn't get released?  What if their fearless leader Julian Assange, wanted for rape in Sweden, gets arrested?  Who decided the release schedule?  So someone else is determining for me what is important and what isn't?  More on this later.

I recognize that Wikileaks is supposed to be about more than Julian Assange, but his figure looms large over the organization:

‘I am the heart and soul of this organization, its founder, philosopher, spokesperson, original coder, organizer, financier and all the rest. If you have a problem with me, piss off.’

Is there any doubt who Wikileaks is really about?  The leaked chat sessions, in which Assange accused another Wikileaks member of leaking data and suspended him for it (the irony of leaked Wikileaks material, no?) close the door on Wikileaks being about more than Julian Assange.

In my prior post about Wikileaks, I challenged them to practice the transparency they preach:

...Wikileaks is about transparency. Can we assume then that they'll continue to regularly update and publish their list of donors? I give them credit for publishing the leak of their own donors, but why does it have to be leaked? If you want transparency, then practice it yourself.

Jacob [Appelbaum] asked for $200,000 in donations for Bradley Manning's legal fund. Will Wikileaks practice transparency by releasing the names of donors to the legal fund?

I'll add to that; since Wikileaks feels the desire to editorialize about the content of these embassy cables, why not release all of the relevant chat sessions among the Wikileaks inner circle so that the public can truly scrutinize what is important, and what isn't.  Who decided the release schedule?  This is important for transparency, isn't it?  Again, going back to my first point, instead of relying on Wikileaks to determine what's important, let the reader decide what is important.

I'll end with what I've said before: Wikileaks lost its focus when the story became about Julian Assange and the Wikileaks organization in general, and less about the actual content of what they're releasing.  There will be some juicy stories about information in these embassy cables, but eventually the story will go back to the underlying narrative about Julian Assange and Wikileaks, and the newsworthiness of their releases is again weakened.

The Next Hope and Wikileaks are wrong about Bradley Manning

Let me preface this post with what should be some obvious acknowledgments. Before I even attended my first HOPE conference two years ago, I had a pretty good idea of what to expect. My experience then and this year both confirmed it. It is no surprise that HOPE is political--more so than any other hacker conference--and the politics are hard left. While many other conferences touch on privacy and legal issues that dance into politics, these are usually issues that don't split the community in half. Indeed, in my experience there is a noticeable libertarian slant to the community at large that you'll tend to see almost anywhere. But HOPE is an entirely different ballgame. I say this not because it should be news to anyone (because it isn't), just that I want to acknowledge up front that my comments come with these ideas in mind.

While I haven't blogged about the Wikileaks situation, I have written about it on both Twitter and on the DEFCON forums. I won't rehash the whole thing here over again, but my general feeling is this: While I don't condone it, I can understand why someone would release the Collateral Murder video. Even then, Wikileaks' analysis of the video was miserably flawed. But no one could convince me that Bradley Manning even read, much less understood the context, of 260,000 diplomatic cables, and that by doing so he felt compelled to release them.

What I'm saying is that if you want to call him a whistleblower for releasing the video, go ahead; I would disagree with you, but I can understand your point of view. With respect to the diplomatic cables, on the other hand, you cannot be a whistleblower if you do not know the content or context of the material you're releasing. It defies logic.

On Saturday night at The Next HOPE, Jacob Appelbaum spoke on behalf of Julian Assange and Wikileaks. That Assange didn't show was not a surprise with rumors that federal authorities are seeking to speak with him. That being said, many attendees were understandably disappointed that he couldn't pre-record, or Skype in to the conference. Either way, the show went on with Appelbaum and without Assange.

Eric Corley (Emmanuel Goldstein) "introduced" Julian Assange and gave a very brief background of the Wikileaks situation. He also claimed that Bradley Manning was a "national hero."

Now before I go any further let me speak a bit about Jacob Appelbaum. We met at a conference in Poland last year and we spoke at length about a variety of political issues. We're on opposite sides of the political spectrum and I understand that. That being said, he has done a lot of great work on behalf of Tor and other projects. I'm not judging his politics here, and I don't want this to come across as disparaging in a personal way because it's not meant that way.

Jacob appeared on stage wearing a hood and lifted it off his head. He then proceeded to explain that his pockets were more or less empty, and that there was no reason to arrest him. A little bit of unnecessary drama. Really. Is there anyone that truly believes that Jacob was ever in any danger of being arrested?

Within a few minutes of the beginning of his talk, a steady stream of people were walking out by this point (I'll be the first to admit I was among them; I followed the rest via Twitter and by downloading the audio).

During the speech I made the following observation on Twitter:

It is interesting that among all the @wikileaks drama and threats, @6 [Adrian Lamo] showed up at #thenexthope and Assange didn't

Now this was a little bit of button-pushing, but also an interesting observation. I was not trying to make a direct comparison of their respective situations, as I recognize that this is apples vs. oranges. I got a few replies like this but also nearly a dozen retweets. I think a few people understood the observation I was making.

I won't go into a number of the leaks he documented, or the political viewpoints he discussed, because that's not what this post is about. But I do have a few points I want to make.

Transparency

Jacob quotes Julian as saying that Wikileaks is about transparency. Can we assume then that they'll continue to regularly update and publish their list of donors? I give them credit for publishing the leak of their own donors, but why does it have to be leaked? If you want transparency, then practice it yourself.

Jacob asked for $200,000 in donations for Bradley Manning's legal fund. Will Wikileaks practice transparency by releasing the names of donors to the legal fund?

"Forget about him"

Appelbaum didn't call out Adrian Lamo by name, but made a clear reference to him as "a person who has no name in this community anymore." Since the audience failed to applaud at the appropriate time, Appelbaum had to goad them along. "Do I have agreement on this?" to applause, of course. And then again, "with a little sincerity." Oh man, this really is some good shit. He finished by claiming that Lamo "doesn't exist." To "forget about him." Ah, the love.

What ever happened to tolerance? Well, I guess tolerance doesn't go that far. Appelbaum is trying to excommunicate Lamo from the community because of this situation. But apparently it's not good enough to state your disagreements and move on, you have to literally claim the person "doesn't exist". This is childish and counterproductive and flies in the face of tolerance. I expect more from someone like Jacob.

Interestingly enough, Adrian Lamo was at the speech, and was present for much of the weekend. He appeared to be in casual conversation with a number of people. He also appeared on the informant panel on Sunday (which I missed, but am trying to get the audio). I didn't really see much hostility toward him (other than the "Wanted" poster), so I'm not sure how well the desire to "forget about him" worked. Oh yeah, a few "stop snitching" shirts and buttons (I'll have more on this in a later post) and one speaker who felt necessary to include a disparaging comment about Lamo on virtually every slide of his presentation. Stay classy, my friends.

More drama

He then showed the Collateral Murder video, suggested that he would return afterwards, and while it was playing, slipped out the back door while someone similarly dressed walked out the front. Really? More over the top and completely unnecessary drama. No doubt the crowd loves it.

But what about those diplomatic cables?

Jacob talked about the charges against Manning and specifically the video. More interestingly, Appelbaum didn't mention the diplomatic cables. Why not? Perhaps because leaking the cables is indefensible. As I stated before with respect to the cables, you cannot be a whistleblower if you do not know the content or context of the material you're releasing. Surely, Manning may have read some of them, but unless he read them all, you lose any claim to being a whistleblower. It defies both common sense and logic.

Combat and Rules of Engagement

In regards to both the Collateral Murder video (with "subtitles") and Appelbaum's comments about combat situations and the rules of engagement, it is pretty clear to me that they have never been in these types of situations. Jacob mentions casually that the rules of engagement permit soldiers to fire into the engine block of a vehicle which could also potentially kill the driver. Ok. But this is entirely out of context without describing the steps of escalation that occur before someone would even consider pulling the trigger. Don't get me wrong, I am not suggesting that Wikileaks or Appelbaum don't have the right to comment on them, as they clearly do. And I'm not justify any specific action. But their comments have to be taken with some degree of caution.

Finally...

Look, I get that Eric Corley and the 2600 crowd enjoy controversy, and it was clear from the beginning that they wouldn't let this one pass. I get that Julian Assange is "wanted." I read that federal agents showed up looking for him. That's understandably dramatic. But it was clear weeks ago that Assange wasn't going to show up. The drama surrounding this talk in particularly was almost entirely artificial and totally over the top.