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News Analysis: Court Rulings Blur the Line Between a Spy and a Leaker

August 2, 2013 by

These developments are rapidly revising the conventional view of the role of the First Amendment in national security cases. The scale of disclosures made possible by digital media, the government’s vast surveillance apparatus and the rise of unorthodox publishers like WikiLeaks have unsettled time-honored understandings of the role of mass media in American democracy.

This is so even where the government was the nominal loser. Consider the case of Pfc. Bradley Manning, who dodged a legal bullet on Tuesday, winning an acquittal on the most serious charge against him: that releasing government secrets to the public amounted to “aiding the enemy.”

But a dodged bullet is still a bullet.

The military judge in Private Manning’s case ruled last year that there was no First Amendment problem with the government’s legal theory. Providing classified information for mass distribution, she said, is a sort of treason if the government can prove the defendant knew “he was giving intelligence to the enemy” by “indirect means.”

The verdict thus means only that military prosecutors did not prove their case. The legal theory stands, and it troubles even usual critics of unauthorized disclosures of government secrets.

“It blurs the distinction between leakers and spies,” said Gabriel Schoenfeld, the author of “Necessary Secrets: National Security, the Media, and the Rule of Law.” He said the government might have lost a battle but made headway in a larger war by “raising the charge and making it seem plausible.”

Something similar happened in 1971, when President Richard M. Nixon failed to stop the publication of the Pentagon Papers, a secret history of the Vietnam War. The Supreme Court’s ruling allowing The New York Times and The Washington Post to publish the papers is often said to be a high-water mark in the annals of press freedom.

But like the Manning verdict, the decision represented a shift in the understanding of the First Amendment.

“The American press was freer before it won its battle with the government,” Alexander Bickel, the Yale law professor who represented The Times in the case, wrote in his classic 1975 book, “The Morality of Consent.”

“Through the troubles of 1798, through one civil and two world wars and other wars, there had never been an effort by the federal government to censor a newspaper by attempting to impose a prior restraint,” Professor Bickel wrote. “That spell was broken, and in a sense, freedom was thus diminished.”

Worse, from the perspective of the news media, the victory in the Pentagon Papers case was distinctly limited and helped shape the Manning prosecution.

“A majority of the Supreme Court not only left open the possibility of prior restraints in other cases but of criminal sanctions being imposed on the press following publication of the Pentagon Papers themselves,” Floyd Abrams, who also represented The Times in the case, wrote in a new book, “Friend of the Court.”

According to a 1975 memoir by Whitney North Seymour Jr., who was the United States attorney in Manhattan in the early 1970s, Richard G. Kleindienst, a deputy attorney general, suggested convening a grand jury in New York to that end. Mr. Seymour said he refused. A grand jury was then convened in Boston, but it did not issue an indictment.

The “aiding the enemy” charge in the Manning case was based on military law, and it is not directly applicable to leakers in other parts of the government or to reporters and publishers. But the theory on which it was based has echoes in the more general espionage laws.

Until recently, its leading proponent was Nixon, who mused on the matter in a meeting in the Oval Office the day after The Times published the first installment of its reports on the Pentagon Papers.

“That’s treasonable,” he said to an aide, “due to the fact that it’s aid to the enemy and it’s a release of classified documents.”

In “Fighting for the Press,” a new book about the case, James C. Goodale, who was general counsel of The New York Times Company at the time, said President Obama has followed in Nixon’s footsteps.

“Obama apparently cannot distinguish between communicating information to the enemy and communicating information to the press,” Mr. Goodale wrote. “The former is espionage, the latter is not.”

But John Yoo, a law professor at the University of California, Berkeley, and a former Bush administration lawyer, said that distinction broke down in the Manning case because he did not make his disclosures directly to the establishment press.

“Manning’s defenders will say that Manning only leaked information to the 21st-century equivalent of a newspaper, and that he could not have known that Al Qaeda would read it,” Professor Yoo wrote in National Review Online.

“But WikiLeaks is not The New York Times or The Wall Street Journal, and it does not have First Amendment rights,” he added. “Manning communicated regularly with WikiLeaks’ founder and would have known about the group’s anarchic, anti-U.S. mission.”

Article source: http://www.nytimes.com/2013/08/03/us/politics/first-amendments-role-comes-into-question-as-leakers-are-prosecuted.html?partner=rss&emc=rss

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Ecuador Risks Trade Problems With U.S. if It Grants Asylum to Snowden

June 25, 2013 by Leave a Comment

Mr. Correa has some tangible factors to think about as well — namely Ecuadorean exports like fresh-cut roses and frozen broccoli.

In recent months, Mr. Correa’s government has been in Washington, lobbying to retain preferential treatment for some key Ecuadorean products. But that favored status, which means keeping thousands of jobs in Ecuador and cheaper goods for American consumers, could be among the first casualties if Mr. Correa grants asylum to Mr. Snowden.

While the downside for Ecuadorean rose growers, artichoke canners and tuna fishermen (whose products also get preferential treatment) is clear, the material benefits of granting asylum to Mr. Snowden are far less so. The decision could ultimately rest on the combative personality of Mr. Correa and his regional ambitions.

“The risks are enormous,” said Michael Shifter, president of the Inter-American Dialogue, a policy group in Washington. Referring to Mr. Correa, he said, “It would bring the United States down very hard on him.”

Mr. Correa, fresh off a landslide re-election victory, glories in a fight. He relishes tweaking the United States and may aspire to take on the mantle of leader of the Latin American left that was once worn by Hugo Chávez, the loudly anti-imperialist president of Venezuela, who died in March.

“Rhetorically, he aspires to be a leader, and this may be a situation that’s hard for him to resist just given his nature and his temperament,” Mr. Shifter said.

Relations with the United States have been rocky almost since Mr. Correa first took office in 2007. He stopped American antidrug flights from an Ecuadorean military base. In 2011, he kicked out the American ambassador, angered by a diplomatic cable revealed by WikiLeaks that suggested he was aware of police corruption and looked the other way.

Last year, he gave asylum in the Ecuadorean Embassy in London to the WikiLeaks founder, Julian Assange, on the grounds that he risked persecution and possibly the death penalty if he were to be charged in the United States for revealing secret State Department cables and other materials.

The two countries exchanged ambassadors again last year, but things have not always gone smoothly for the new American envoy, Adam E. Namm.

Last month, Mr. Correa, who has warred continually with the news media in his country, reacted angrily after Mr. Namm attended an event in favor of freedom of expression that was organized by the National Journalists Union. Mr. Correa called Mr. Namm a meddler and warned him to behave. The foreign minister, Ricardo Patiño, said darkly that the next time he might get more than just a warning.

The last sustained high-level contact between the two countries may have come in 2010, when Secretary of State Hillary Rodham Clinton visited Ecuador. During that visit, Mr. Correa told her, “We’re not anti-American; we love America,” and he described his years as a student at the University of Illinois as the happiest of his life.

But Mrs. Clinton pressed him on his government’s crackdown on the news media, and when an Ecuadorean journalist challenged him about his policies at a news conference, the president rebuked him while Mrs. Clinton watched stone-faced.

The most likely casualty of sheltering Mr. Snowden would be the trade preferences, which have been in place since the early 1990s. Originally designed for several Andean nations, Ecuador is the last remaining recipient. But the preferences, which applied to about $429 million in non-oil exports last year, expire at the end of July unless they are renewed by Congress.

That renewal was already in doubt, not least of all, officials said, because the oil giant Chevron has been lobbying hard against Ecuador. The campaign is part of Chevron’s response to an $18 billion penalty against the company ordered by an Ecuadorean court in a case over environmental damages related to oil drilling in the Amazon.

But Ecuador has begun its own campaign to keep the preferences, including a Web site called Keep Trade Going, that urges Americans to contact their legislators to ask them to vote in favor of the pact.

At the same time, Ecuador has staked out a fallback position, petitioning to include roses, frozen broccoli and canned artichokes in a separate trade program, the Generalized System of Preferences. That decision is controlled by the White House, so Ecuador is essentially asking President Obama’s help in getting around opposition in Congress.

Mr. Obama must decide by Monday whether he will include those items — a move that becomes increasingly thorny as the standoff over Mr. Snowden continues.

The question remains how heavily Mr. Correa will weigh such economic considerations.

William Neuman reported from Quito, Ecuador, and Mark Landler from Washington. Maggy Ayala contributed reporting from Quito.

Article source: http://www.nytimes.com/2013/06/26/world/americas/ecuador-courts-trade-problems-with-us-if-it-grants-snowden-asylum.html?partner=rss&emc=rss

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Dutch Man Said to Be Arrested in Powerful Internet Attack

April 27, 2013 by Leave a Comment

While the authorities did not give the full name of the man in a statement published on a Dutch government Web site, they identified him as “S.K.” A source close to the investigation, who was not authorized to speak publicly, confirmed that the arrested man was Sven Olaf Kamphuis, a 35-year-old Dutch man who has been the spokesman of a group that was protesting a European antispam group’s tactics.

Spanish police arrested the man on Thursday at his home in Barcelona, at the request of the Dutch police, and seized his computers and mobile phones. He is expected to be sent to the Netherlands. Wim de Bruin, a spokesman for Dutch national prosecutor’s office, said “S.K.” was suspected of playing a role in a wave of attacks last month.

His arrest came after an investigation by authorities in the Netherlands and other European countries into Mr. Kamphuis’s involvement in one of the largest attacks on the Internet. Mr. Kamphuis has been suspected of starting a distributed denial of service, or DDoS, attack against Spamhaus, the antispam group. Such attacks are a criminal offense under Dutch law.

Mr. Kamphuis calls himself the “minister of telecommunications and foreign affairs for the Republic of CyberBunker.” But many consider him to be the Prince of Spam. He runs CB3ROB, an Internet service provider, and CyberBunker, a Web hosting company that in the past has hosted sites like WikiLeaks and the Pirate Bay, a site accused of abetting digital content piracy.

Antispam groups say they believe CyberBunker acts as a conduit for vast amounts of spam. Last month, Spamhaus, an antispam group based in Geneva, added CyberBunker to its blacklist, which is used by major e-mail providers to block spam.

In the days and weeks after the blacklisting, Spamhaus was targeted with an DDoS attack, which flooded the site with traffic until it fell offline.

After Spamhaus hired a Silicon Valley Internet security firm, CloudFlare, to defend against the attack, the attackers turned their ire on CloudFlare. When efforts to bring down CloudFlare were unsuccessful, the attackers hit back with a far more powerful strike that exploited the Internet’s core infrastructure, called the Domain Name System, or D.N.S.

Their attack quickly reached previously unknown magnitudes, growing to a data stream of 300 billion bits per second, which resulted in slowing Internet traffic for millions of Internet users around the world.

Mr. Kamphuis has denied his role in the attack and said he was only a spokesman for Stophaus, a loose organization set up to take down Spamhaus. Asked about his involvement in the attacks last month, Mr. Kamphuis told The New York Times, “We are aware that this is one of the largest DDoS attacks the world has seen so far, yes.”

But through his Facebook page, Mr. Kamphuis has actively called on hackers to take Spamhaus offline.

“Yo anons, we could use a little help in shutting down illegal slander and blackmail censorship project ‘spamhaus.org,’ which thinks it can dictate its views on what should and should not be on the Internet,” he said on Facebook on March 23.

Dutch prosecutors singled out Mr. Kamphuis because of his vocal role. Greenhost, a Dutch Internet hosting service, said in a blog post that it had found CB3ROB’s digital fingerprints while studying the attack traffic directed at Spamhaus.

Mr. Kamphuis’s arrest in Barcelona was made through the European Union’s judicial collaboration unit, Eurojust.

An anonymous statement was posted to Pastebin, a Web forum for hackers, on Friday, proclaiming Mr. Kamphuis’s innocence and threatening another round of attacks if he is not released. “We demand u to release Sven or we will indeed start the biggest attack u humans have ever experienced toward The Internet, and yourself,” the hacker wrote.

Eric Pfanner contributed reporting.

This article has been revised to reflect the following correction:

Correction: April 26, 2013

An earlier version of the Web summary on this article misstated who had arrested a man believed to be connected to an online attack. Dutch authorities announced the development, but it was Spanish police who made the arrest, they said, not the Dutch.

Article source: http://www.nytimes.com/2013/04/27/technology/dutch-man-said-to-be-arrested-in-powerful-internet-attack.html?partner=rss&emc=rss

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Media Decoder Blog: The Breakfast Meeting: Assange Assails ‘Propaganda’ Film, and Netflix Surges

January 24, 2013 by Leave a Comment

Netflix surprised Wall Street with a fourth-quarter profit of $8 million and a customer base of more than 27 million American households, causing one analyst to say the company has “risen from the ashes” of its disastrous 2011. Shares jumped 30 percent in after-hours trading. Apple reported a profit of $13.1 billion and a 28 percent increase in the sale of iPhones but that still wasn’t enough for investors, who pounded the stock down 11 percent in after-hours trading.

Appearing via link from the Ecuadorean Embassy in London, Julian Assange attacked a new Hollywood film about WikiLeaks in an address to the Oxford Union. “The Fifth Estate,” a film by Bill Condon about the early days of WikiLeaks, is a “massive propaganda attack” according to Mr. Assange, who also said the film depicted Iran on the verge of having a nuclear arsenal.

Rolling Stone has laid off two longtime employees of the magazine: Eric Bates, the executive editor who had been with the magazine for more than a decade, and Mark Neschis, who handled press for Wenner Media, which owns Rolling Stone, Men’s Journal and US Magazine. Wenner Media has been struggling with declining ad revenues and a negative credit rating issued by Standard Poor’s in December.

Fox announced it would put “Ben and Kate” on the shelf, another sign of a poor season for comedies. Ratings for “Ben and Kate,” “The Mindy Project” and “The New Girl,” all on Fox, have struggled this year, along with NBC’s “Go On” and “The New Normal,” both of which sank to new lows this past week.

A good time was had by all: more than 70 reporters and editors have responded to a casting call for a new reality series about a small-town newspaper, according to a report on Romenesko.

Article source: http://mediadecoder.blogs.nytimes.com/2013/01/24/the-breakfast-meeting-assange-assails-propaganda-film-and-netflix-surges/?partner=rss&emc=rss

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In Private Manning Case, Jailers Become the Accused

December 8, 2012 by Leave a Comment

Private Manning faces a potential life sentence if convicted on charges that he gave WikiLeaks, the antisecrecy organization, hundreds of thousands of confidential military and diplomatic documents. But for now, he has been effectively putting on trial his former jailers at the Quantico, Va., Marine Corps base. His lawyer, David E. Coombs, has grilled one Quantico official after another, demanding to know why his client was kept in isolation and stripped of his clothing at night as part of suicide-prevention measures.

Mr. Coombs, a polite but relentless interrogator who stands a foot taller than his client, has laid bare deep disagreements inside the military: psychiatrists thought the special measures unnecessary, while jail commanders ignored their advice and kept the suicide restrictions in place. In a long day of testimony last week, Private Manning of the Army, vilified as a dangerous traitor by some members of Congress but lauded as a war-crimes whistle-blower on the political left, heartened his sympathizers with an eloquent and even humorous performance on the stand.

“He was engaged, chipper, optimistic,” said Bill Wagner, 74, a retired NASA solar physicist who is a courtroom regular, dressed in the black “Truth” T-shirt favored by Private Manning’s supporters.

Private Manning, who turns 25 on Dec. 17 and looks much younger, was quietly attentive during Friday’s court session, in a dress uniform, crew-cut blond hair and wire-rimmed glasses. If his face were not already familiar from television news, he might have been mistaken for a first-year law student assisting the defense team.

It seemed incongruous that he has essentially acknowledged responsibility for the largest leak of classified material in history. The material included a quarter-million State Department cables whose release may have chilled diplomats’ ability to do their work discreetly but also helped fuel the Arab Spring; video of American helicopter crews shooting people on the ground in Baghdad who they thought were enemy fighters but were actually Reuters journalists; field reports on the wars in Iraq and Afghanistan; and confidential assessments of the detainees locked up at Guantánamo Bay, Cuba.

As the military pursues the case against Private Manning, the Justice Department continues to explore the possibility of charging WikiLeaks’ founder, Julian Assange, or other activists with the group, possibly as conspirators in Private Manning’s alleged offense. Federal prosecutors in Alexandria, Va., are still assigned to that investigation, according to law enforcement officials, but it is not clear how active they have been lately in presenting evidence to a grand jury.

The current tone of the legal proceedings against Private Manning is most likely temporary. His lawyer is asking the judge overseeing the case to throw out the charges on the ground that his pretrial treatment was unlawful, but that outcome appears unlikely.

As a fallback, Mr. Coombs is hoping the court will at least give Private Manning extra credit against any ultimate sentence for the time he spent held under harsh conditions at Quantico and earlier in Kuwait, where he was kept in what he described as “an animal cage.” After the uproar about his treatment, including public criticism from the State Department’s top spokesman and the United Nations’ top torture expert, military officials moved Private Manning in April 2011 from Quantico to a new prison at Fort Leavenworth, Kan., where he has not faced the same restrictions on clothing, sleeping conditions and conversation with other inmates.

As if to underscore the gravity of his legal predicament, Private Manning offered last month to plead guilty to lesser charges that could send him to prison for 16 years. Prosecutors have not said whether they are interested in such a deal, which would mean they would have to give up seeking a life sentence for the most serious charges: aiding the enemy and violating the Espionage Act.

Friday’s court session was attended by a dozen Manning loyalists, including Thomas A. Drake, the former National Security Agency official who was accused of leaking documents and pleaded guilty to a minor charge last year. They heard the commander of the Quantico brig, or military jail, explain why she refused Private Manning’s request to be taken off “prevention of injury” status.

Scott Shane reported from Fort Meade, and Charlie Savage from Washington.

Article source: http://www.nytimes.com/2012/12/08/us/in-private-bradley-manning-case-jailers-become-the-accused.html?partner=rss&emc=rss

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Assange, WikiLeaks Founder, May Be Extradited, Judges Rule

November 2, 2011 by Leave a Comment

Two of Britain’s most senior judges declined all four of the objections his defense team had raised, summarizing their decision in five short words: “The court dismissed the appeal.” The decision makes it increasingly likely that Mr. Assange will face his accusers in Sweden.

The 43-page ruling was the latest twist in a 11-month legal battle that has seen multiple court appearances across London, throngs of supporters wielding placards and WikiLeaks temporarily shuttered. Mr. Assange was briefly jailed last December, as Swedish authorities filed an arrest warrant demanding he return to face allegations of sexual molestation, unlawful coercion and rape made by two WikiLeaks volunteers in Stockholm in August 2010.

He vehemently denies the allegations and has engaged a series of high-profile lawyers to fight the extradition warrant, arguing, among other things, that he could not get a fair trial and that he might face later extradition to the United States, where, he says, his life might be in danger. Mr. Assange has given interviews condemning Sweden’s strict sexual crimes laws, calling the country “the Saudi Arabia of feminism,” and he has compared himself to the civil rights activist Martin Luther King Jr.

Wednesday’s ruling marks the second time a British court has rejected his appeals. He has 14 days to ask the court for permission to bring his case before Britain’s highest court, the Supreme Court, for a final appeal. Similar to its American counterpart, the court hears only cases of constitutional or general public importance to the population of the whole country.

After the ruling Mr. Assange and his coterie of advisers and friends huddled together in the courthouse to discuss their options, flanked by security guards. “We will consider our next steps in the coming days,” he said in a brief statement to the throng of reporters gathered outside. But a person close to Mr. Assange said he would indeed appear in court again to seek permission to appeal. If it is not granted, Mr. Assange will be extradited to Sweden within 10 days.

Saying that he “has not been charged with any crime,” Mr. Assange lamented that the terms of the arrest warrant do not allow him to contest the extradition based on the substance of the case, which rests on accusations by the two women that consensual encounters with Mr. Assange became nonconsensual.

Mr. Assange appeared for an initial interview with the police in Sweden in 2010, but flew to London before further questioning could be completed, a court here was subsequently told. Swedish prosecutors decided to issue an Interpol red notice and a European arrest warrant to compel him to return.

He has told friends that he refused to return to Stockholm to face questioning because he fears that the country is run by a small cabal of interconnected people who are aligned against him. He believes that he is on trial, he has said, for an alleged affront to all Swedish women, and that court proceedings will be tainted by that wider anger.

Mr. Assange’s lawyers have also argued that if he were extradited from Sweden to the United States, he could face the death penalty over the leaking of classified American documents, citing comments by Sarah Palin and other conservative politicians earlier this year.

The WikiLeaks release of hundreds of thousands of classified United States military documents on the Iraq and Afghanistan wars and classified State Department diplomatic cables dominated the front pages of newspapers across the world, including The New York Times, last year. Mr. Assange placed himself at the forefront of those releases, he told reporters, as a means of seeking publicity for documents he hoped would reshape the very nature of government.

But since he was briefly jailed last December, before being released on bail and placed under house arrest at the country mansion of a wealthy friend in eastern England, WikiLeaks has foundered. Mr. Assange told a press conference in London last month that it would cease its publishing activities because it lacked money following a blockade on donations to credit card companies like Visa and MasterCard, and the payments services Western Union and PayPal.

In the midst of Mr. Assange’s legal battles, the organization was severely weakened by a spate of defections from its core of specialist computer-programmer volunteers, insiders have said. Many, tired of what they described as Mr. Assange’s eccentricity and imperiousness, have formed their own document leaking sites.

Protesters, and celebrity supporters like the socialites Jemima Khan and Bianca Jagger, and the journalist John Pilger, have often conflated the case with a battle for free speech. Mr. Assange himself has hinted darkly that government forces might be behind the allegations of sexual wrongdoing as a means of silencing him.

Article source: http://feeds.nytimes.com/click.phdo?i=0a1eed4edbc12a0f109411e13d767643

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