high court – Techdirt (original) (raw)

Analyst Who Accidentally Leaked NSA Software Given Five More Years In Prison Than General Who Handed Classified Info To His Mistress

from the 'somebodies'-score-another-win-over-the-'nobodies' dept

An NSA employee will be headed to prison for inadvertently exposing the agency’s malware stash.

Nghia Hoang Pho, 68, of Ellicott City, Maryland, and a naturalized U.S. citizen originally of Vietnam, was sentenced today to 66 months in prison, to be followed by three years of supervised release, for willful retention of classified national defense information. According to court documents, Pho removed massive troves of highly classified national defense information without authorization and kept it at his home.

Pho’s leaks were different than other NSA leaks. First reported last year by a couple of press outlets, the NSA TAO (Tailored Access Operations) tools were exposed to the outside world by anti-virus software , which correctly labeled it as malware. These malware samples drew the attention of hackers who then targeted Pho’s laptop to exfiltrate NSA hacking tools. The NSA exploits and malware made their way into the public domain, kicking off a crippling wave of ransomware that has since been repurposed to mine for cryptocurrency on infected computers.

The DOJ’s press release has a lot to say about the seriousness of the offense and the seriousness of the FBI in tracking down government employees who carelessly handle classified code. In particular, it offers up this self-serving garbage to justify locking someone up for taking their work home with them.

“Pho’s intentional, reckless and illegal retention of highly classified information over the course of almost five years placed at risk our intelligence community’s capabilities and methods, rendering some of them unusable,” said Assistant Attorney General Demers. “Today’s sentence reaffirms the expectations that the government places on those who have sworn to safeguard our nation’s secrets. I would like to thank the agents, analysts and prosecutors whose hard work brought this result.

This sentence does nothing of the sort. To those not closely watching these things (i.e., people who’d never read this press release in the first place), it may seem like the DOJ is serving up justice. But for those of us who’ve seen certain people — like General Petraeus — mishandle classified info in a much more egregious fashion (giving his mistress, and biographer, access to top secret info) and walk away from it pretty much unscathed, this statement from the DOJ is not just hollow. It’s hypocritical.

Even the judge handling the case saw through the DOJ’s double standard. Josh Gerstein of Politico reports the judge had plenty to say about the DOJ’s prosecutorial efforts, especially in light of the fact Pho never directly gave anyone else access to the NSA’s classified hacking stash.

[O]ne of the most striking aspects of Tuesday’s sentencing was [Judge George] Russell’s lament that top government officials seem to have escaped with little more than a slap on the wrist for engaging in similar behavior.

Russell seemed particularly perturbed that former CIA Director David Petraeus managed to get probation after admitting he kept highly classified information in his home without permission, shared it with his girlfriend and lied to investigators.

“Did he do one day in prison?” the clearly frustrated judge asked. “Not one day. … What happened there? I don’t know. The powerful win over the powerless? … The people at the top can, like, do whatever they want to do and walk away.”

It’s nice to hear this from a judge, even if there’s nothing the judge can actually do about it. Russell could only sentence Pho, not clawback Petraeus’ unearned freedom and post-conviction cakewalk. Judge Russell might be less willing to help the government apply its sentencing double standard in the future, but his statements to the DOJ have probably only assured the agency will try to steer clear of his court in the future.

Filed Under: classified info, david petraeus, double standards, high court, leaks, low court, nghia hoang pho, nsa, nsa tao, sentencing

from the good-for-the-goose,-not-so-good-for-the-gander dept

We recently wrote how various parts of the EU governing bodies were in violation of the GDPR, to which they noted that the GDPR doesn’t actually apply to them for “legal reasons.” In most of the articles about this, however, EU officials were quick to explain that there would be new similar regulations that did apply to EU governing bodies. Jason Smith at the site Indivigital, who kicked off much of this discussion by discovering loads of personal info on people hosted on EU servers, has a new post up looking at the proposals to apply GDPR-like regulations on the EU governing bodies itself.

There are two interesting points here. First, when this was initially proposed last year, the plan was to have it come into effect on the very same day as the GDPR went into effect: May 25, 2018, and that it was “essential” that the public understand that the EU itself was complying with the same rules as everyone else.

Essential however, from the perspective of the individual, is that the common principles throughout the EU data protection framework be applied consistently irrespective of who happens to be the data controller. It is also essential that the whole framework applies at the same time, that is, in May 2018, deadline for GDPR to be fully applicable.

Guess what didn’t happen? Everything in the paragraph above. The EU forced everyone else to comply by May of this year. But gave itself extra time — time in which it is not complying with the rules and brushing it off as no big deal, while simultaneously telling everyone else that it’s easy to comply.

Also, while the GDPR puts incredible fines on those who fail to comply… the fines for if the EU doesn’t comply (if this rule ever actually goes into effect) are much more limited. Under the GDPR, companies can be fined 20 million euros or 4% of revenue, whichever is higher, meaning that any smaller company can be put out of business, but the plan for the EU itself is for fines to top out at €50,000 per mistake, with a cap of €500,000 per year.

Must be nice when you’re the government and can make different rules for yourself, while mocking anyone who thinks that the rules for everyone else are a bit too aggressive and onerous.

Filed Under: double standards, eu, eu commission, eu parliament, gdpr, high court, low court

FBI Misconstrued Content Of Doc Leaker Reality Winner's Jailhouse Calls

from the press-'record'-and-be-done-with-it dept

The ongoing prosecution of document leaker Reality Winner has developed some new wrinkles. Despite having a very traceable leaked document in hand, the FBI is pitching in by misleading government lawyers — and by extension, the presiding court. Maybe it’s deliberate. Maybe it isn’t. Either way, the administration wants desperately to crack down on leakers, and having a high-profile case result in a multi-year sentence would be a good start.

Right now, the government just wants to keep Winner locked up until her trial. Prosecutors have been arguing against her being released from jail by misconstruing the contents of recorded calls from Winner. (h/t Jeremy Scahill)

In arguing for her to be kept in the Lincoln County Jail in Lincolnton, Assistant U.S. Attorney Jennifer Solari told a judge Winner was recorded in a jailhouse phone call discussing some “documents” — plural — raising concerns she might have gathered other top-secret information beyond the NSA report she is accused of leaking. Solari said she was also overheard directing the transfer of $30,000 from her savings account to her mother’s account because the court had taken away her free appointed counsel.

But none of this is true. And it’s not as though it’s a matter of interpretation. Recordings exist.

But in an email to Winner’s attorneys on June 29, Solari said Winner could be heard in the recording telling her mom she “leaked a document,” singular. And in another recorded phone call, Solari said, Winner asked her mom to transfer her money because of fears authorities “might freeze it.” Winner’s attorneys said she was afraid she would not be able to pay her bills if her account were frozen.

So, where did this bogus info come from? The FBI, of course, which can’t be bothered to let a recording literally speak for itself. US Attorney Solari stated in her email her comments on plural documents and the reasons for the requested funds transfer came from “verbal summaries” of the calls provided by the feds.

If there’s anything the FBI has shown a systemic dislike for, it’s recordings. Despite several decades of recording tech advancements, the FBI prefers pen-and-paper for “recording” interviews with suspects, indictees, and witnesses. In this case, the FBI could have given the prosecutor the recordings directly. Instead, it chose to provide an inaccurate summary. With the FBI, it’s never your word against theirs. It’s the FBI’s words. Period.

Winner’s attorneys have asked for her release pending trial, pointing to former military personnel who were allowed to roam free before having their day in court — people like Gen. Petraeus, who was allowed to retain his position as CIA director up until he plead guilty to mishandling classified documents. But, as her attorneys are surely aware, a multi-tiered justice system doesn’t allow for the release of NSA contractors who don’t have Forever War Hero listed on their resumes.

Beneath all of this is one incredible fact: the FBI chose to present a verbal recap rather than hand over recordings. If the prosecutor hadn’t bothered to listen to the tapes, the judge would be relying on misstatements made by the FBI when making a decision affecting someone’s freedom. And if it had gone further than this, those verbal recaps might have been entered as evidence showing Winner was seeking to cut-and-run and possibly leak more documents — both of which would have had an extremely adverse effect on her sentencing.

Filed Under: bail, doj, espionage act, fbi, high court, leaking, low court, misleading, reality winner

Indian High Court Blocks Rent-Seeking Collection Societies From Seeking Any More Rent

from the laws-are-for-other-people dept

Ben Challis of the 1709 Blog reports that one of India’s top courts has just cut a few performance royalty “collection societies” off at the knees.

In a blow to three Indian music copyright collection societies, the Delhi High Court has restrained them from granting any such licence till April 24th 2017. Justice Sanjeev Sachdeva, in an interim order, restrained the Indian Performing Right Society (IPRS), the Phonographic Performance Ltd (PPL) and Novex Communications Pvt Ltd from contravening section 33 of Copyright Act, which provides that only registered societies can grant licences in respect of copyrighted work(s).

None of the three collection societies are registered, which means they can no longer shake down everyone from doctors (for music played in waiting rooms) to concert venues for licensing fees and performance royalties. In the latter case, the societies were often instrumental in limiting the amount of live music available to Indians, even though they had no royalty claim on the live music itself.

PPL collects a fee if any recorded music is played at a concert. “Live concerts do not need our clearance. But who can ensure that no recorded music will be played in the time gap between different artists or before the concert begins? At times people responsible for giving out permissions take unfair advantage in charging money. We are taking note of that and strict measures will be taken,” says Sowmya Chowdhury, country head and director of PPL.

Venue owners were so intimidated by the societies’ per-seat royalty demands they’d often refuse to host a concert if the artist couldn’t come up with all sorts of paperwork.

PPL happens to be Phonographic Performance Ltd and IPRS is Indian Performing Right Society, two pan-India autonomous bodies that report to the central HRD ministry and control the fate of live performances. Their roles are not even completely understood by musicians, which often leads to trouble before concerts. Pt Tejendranarayan Majumder was at a loss when he was asked for innumerable no-objection certificates before a recent concert at an auditorium.

[…]

Most auditoriums demand no-objection certificates from PPL and IPRS. Even police permission is given only after these are submitted.

Once again, we have an entity supposedly looking out for artists doing what it can to prevent artists from earning a living. This is what they won’t be able to do now, thanks to a change in the nation’s copyright law.

Blocking these societies from collecting performance royalties won’t do much for the artists signed to them. But then again, the collection societies weren’t doing much for artists in the first place. IPRS has been particularly shady. Many royalty collection societies are known for their extremely limited distribution of funds. Those that do pay out more regularly still tend to hand the bulk of it to charting artists, no matter who actually earned it.

IPRS, however, apparently didn’t even bother with limited royalty dispersals.

The IPRS will be investigated under Prevention of Money Laundering Act (PMLA), 2002, after it was alleged that the company (which was once a society) has collected royalties on behalf of authors, composers and music publishers, and failed to distribute it among the rights holders.

Fourteen months later, the results of the investigation have yet to be made public, but chances that royalties will soon be flowing to artists remain slim. IPRS and PPL are no longer public societies. They are both private companies.

PPL’s decision to go private followed IPRS’s. Both moves appear to have been motivated by government scrutiny. The government is still looking into IPRS’s royalty distributions, but the society’s decision to go private appears to have been a failed attempt to prevent this investigation from taking place.

IPRS in its petition had submitted that it had ceased to be a ‘copyright society’ and therefore the Central Government had no power to investigate IPRS. The Bombay High Court in dismissing IPRS’ petition had observed that the allegations for which the inquiry had been instituted were committed when IPRS was still a ‘copyright society’.

This move has completely backfired on IPRS. It didn’t manage to avoid the investigation of its current collections, and it’s now being prevented from collecting anything else for the next few months. And it very much looks like any fees it obtained between its opting out of India’s “copyright society” and now were collected illegally.

These societies claim to be in the copyright business, but apparently can’t bothered to adhere to the nation’s copyright laws. And if those in the copyright business don’t respect the law, they can’t really get too bent out of shape if no one else does either.

Filed Under: collection societies, copyright, high court, india, performance rights, rent seeking

Gen. Petraeus Leaked Classified Info To Journalists, Sent Sensitive Documents To Non-Secure Email Accounts

from the DOJ-points-to-lightly-stung-wrists-as-proof-justice-has-been-served dept

General Petraeus, despite turning over “little black books” filled with classified info to his mistress/biographer (Paula Broadwell), is now serving out his mild non-sentence by suffering through high-paying speaking gigs. The government — “punishing” one of its own — ended up implying there was somehow a difference between Petraeus and others who turned over classified information to journalists.

But there appears to be zero difference between Petraeus and whistleblowers who received much harsher treatment. Josh Gerstein of Politico reports:

“There is a recorded conversation between Petraeus and, inter alia, Washington Post reporters, which, based on the information and belief of your affiant, occurred in or about March 2011,” Special Agent Diane Wehner wrote. “In the conversation, Petraeus stated, ‘I would really love to be on background as a senior military officer.’ Later in the recording, Petraeus discusses sensitive military campaigns and operations, some of which, on the basis of a preliminary review … is believed to contain classified information, including information at the Top Secret level.”

Apparently, the difference between having your life destroyed and having your life slightly inconvenienced depends on how you’ve portrayed the government to the press with your links. Leaks made in support of government activity have always received a warmer reception.

The government may believe Petraeus is no common leaker, but it’s also going to have to extend its hypocritical shrug to encompass the phrase, “He’s no Hillary Clinton.”

The FBI affidavit also indicates that investigators believed Petraeus “likely” agreed to help Broadwell gather classified information from others. In 2011, Broadwell wrote to an Army lieutenant colonel seeking details about his unit’s operations. The officer replied by asking for “a good SIPR number,” referring to a government network for handling classified information.

“If you have classified material, Gen Petraeus has been gracious enough to allow me to have you send the storyboards and material to his SIPR account; I’ll pick them up as soon as you send the word! I’ve copied him on this email,” Broadwell wrote.

Yes, General Petraeus sent classified info to several email addresses (both Broadwell and Petraeus used more than one account, along with burner phones, to communicate), none of which appear to have been designated as secure.

The FBI apparently pushed for felony charges under the Espionage Act, but the DOJ overrode it, allowing Petraeus to walk away with two years probation on a lesser “mishandling” charge. I’m sure the FBI feels the same thing will happen again with Clinton, no matter what it uncovers during its investigation of her private email server usage. According to former AG Eric Holder, Petraeus wasn’t treated differently than any of the other leakers the DOJ has prosecuted over the past several years. It just looked that way because of reasons Holder won’t discuss.

“There were some unique things that existed in that case that would have made prosecution at the felony level — and conviction at the felony level — very, very, very problematic.”

In the context of Petraeus’ actions, “problematic” seems to be another way of saying “embarrassing.” Holder’s statement to Politico tries to portray the prosecution as lacking in evidence to make a felony charge stick. But the evidence appears to be there. The only thing lacking was the will to do so, both by the DOJ and the administration guiding its moves.

Filed Under: classified info, david petraeus, espionage act, high court, leaking, low court

David Patraeus, Who Leaked Classified Info To His Mistress, Says Snowden Should Be Prosecuted

from the say-that-again? dept

Last week, the Intercept published Ed Snowden’s powerful foreword to Jeremy Scahill’s new book The Assassination Complex. The foreword is entitled: Whistleblowing Is Not Just Leaking ? It?s an Act of Political Resistance. It’s really worth reading. In it, among other things, he does note that there are very different kinds of leaking information. There are situations where you are alerting the public to important information. And then there are… other situations. Like what happened to former CIA Director, General David Petraeus:

Not all leaks are alike, nor are their makers. Gen. David Petraeus, for instance, provided his illicit lover and favorable biographer information so secret it defied classification, including the names of covert operatives and the president?s private thoughts on matters of strategic concern. Petraeus was not charged with a felony, as the Justice Department had initially recommended, but was instead permitted to plead guilty to a misdemeanor. Had an enlisted soldier of modest rank pulled out a stack of highly classified notebooks and handed them to his girlfriend to secure so much as a smile, he?d be looking at many decades in prison, not a pile of character references from a Who?s Who of the Deep State.

That’s a pretty good summary of the “high court” situation that lets powerful people like Petraeus get away with passing on such information that could have legitimately put people at risk.

So, it was interesting, just days later, to see a long interview in the Financial Times with David Petraeus, in which he’s asked about Snowden (warning: the link may be paywalled). The interview covers many subjects, and the comment on Snowden is quite brief:

Should Edward Snowden be prosecuted, I ask? ?Unquestionably,? he replies. ?If Snowden had wanted to help that debate he could have very easily been a whistleblower who could have gone to the appropriate organisation and offered his views. He didn?t.?

This is bullshit on so many levels. First, it’s bullshit because Petreaus himself got off with barely a wrist slap for his own activity, which had nothing to do with whistleblowing and appeared to be much more dangerous than what Snowden did. Second, as Petreaus absolutely knows, the intelligence community does not treat whistleblowers well. Previous whistleblowers, including Thomas Drake, basically had their lives destroyed as punishment for using the “appropriate” channels for whistleblowing. Hell, just last week, we wrote about yet another case of an intelligence community whistleblower, who used the “appropriate” channels, suddenly having her home raided and her career in shambles.

Third, it’s bullshit because even in using the “appropriate” channels, as an NSA contractor, Snowden was not protected from direct retaliation for whistleblowing. Fourth, it’s bullshit because the “proper channels” would just be to run it up the line of people who thought it was hunky dory to lie to the American public to reinterpret the PATRIOT Act to enable them to spy on everyone’s communications data. That wouldn’t have done anything. Fifth, it’s bullshit because once the information actually did get out through the press — which never would have happened through “appropriate channels,” it has set in motion a number of changes, among companies, individuals, Congress and the intelligence community. That’s the point of whistleblowing, to actually change the behavior through alerting more people to what’s going on.

But, really, it seems especially idiotic that someone in Petreaus’ position would weigh in so hypocritically on Snowden’s situation.

Filed Under: david petraeus, ed snowden, high court, leaks, low court, prosecution, whistleblowing

Compare And Contrast: Treatment Of Thomas Drake & Hillary Clinton For Having Classified Info

from the double-standards dept

The Washington Post has a big story delving deep into how the Hillary Clinton email scandal happened, noting that Clinton just didn’t want to give up her BlackBerry, even as the NSA told her repeatedly that it wasn’t secure and there were serious risks involved. What’s amazing, from the story, is how much everyone was focused on the BlackBerry side of things, and sort of skipped over the fact that she was using a private email account with the server set up in her basement. The WaPo article notes that for the first few months in her job as Secretary of State, the email server didn’t even have basic encryption tools enabled. All of that is a travesty, and you should read the whole article to understand the issue more, but I wanted to focus in on a related issue: the high court/low court treatment of Hillary Clinton as compared to others. In particular, the situation with Thomas Drake, the NSA whistleblower.

Almost five years ago, we wrote about the Thomas Drake case, highlighting some key passages in an astoundingly thorough New Yorker piece by Jane Mayer, which ripped the government’s case to shreds. That long article is also worth reading, but for this story, the key points are that Drake was getting on some people’s nerves by complaining about the decisions the NSA was making in the wake of 9/11 — moving towards using an expensive computer system that would suck up everyone’s data, while he and others had worked on a much more cost-efficient system that would get better results and had built-in protections for civil liberties. Drake blew the whistle and provided information to a Congressional oversight staffer.

When a big NY Times investigative piece came out later revealing the NSA’s warrantless wiretapping program, and the NSA tried to figure out who had leaked, they raided Drake’s home. He hadn’t been the leaker, but after ruffling through basically everything, they found that Drake had kept a few marginal classified documents:

Then, in April, 2008, the F.B.I. told him that someone important wanted to meet with him, at a secure building in Calverton, Maryland. Drake agreed to the appointment. Soon after he showed up, he says, Steven Tyrrell, the prosecutor, walked in and told him, ?You?re screwed, Mr. Drake. We have enough evidence to put you away for most of the rest of your natural life.?

Prosecutors informed Drake that they had found classified documents in the boxes in his basement?the indictment cites three?and discovered two more in his e-mail archive.

The “classified” information in question was totally meaningless. There was unclassified stuff he had kept because he had given it to the Inspector General as part of his whistleblowing and had been told to keep it. And there was a schedule of meetings that was marked unclassified, but which the government claimed should have been classified. And another document that was declassified soon after:

?They had made me into an enemy of the state just by saying I was,? Drake says. The boxes in his basement contained copies of some of the less sensitive material that he had procured for the Inspector General?s Trailblazer investigation. The Inspector General?s Web site directs complainants to keep copies. Drake says that if the boxes did, in fact, contain classified documents he didn?t realize it. (The indictment emphasizes that he ?willfully? retained documents.) The two documents that the government says it extracted from his e-mail archive were even less sensitive, Drake says. Both pertained to a successor to Trailblazer, code-named Turbulence. One document listed a schedule of meetings about Turbulence. It was marked ?unclassified/for official use only? and posted on the N.S.A.?s internal Web site. The government has since argued that the schedule should have been classified, and that Drake should have known this. The other document, which touted the success of Turbulence, was officially declassified in July, 2010, three months after Drake was indicted. ?After charging him with having this ostensibly serious classified document, the government waved a wand and decided it wasn?t so classified after all,? Radack says.

Because of those five documents, none of which ever should have been classified and one of which clearly was not… the Justice Department threatened Drake with thirty-five years in jail.

Drake was no longer charged with leaking classified documents, or with being part of a conspiracy. He is still charged with violating the Espionage Act, but now merely because of unauthorized ?willful retention? of the five documents. Drake says that when he learned that, even with the reduced charges, he still faced up to thirty-five years in prison, he ?was completely aghast.?

Okay. Got that? Thirty-five years because he “retained” five documents the government claims were classified.

Now, back to Clinton:

State Department and Intelligence Community officials have determined that 2,093 email chains contained classified information. Most of the classified emails have been labeled as ?confidential,? the lowest level of classification. Clinton herself authored 104 emails that contained classified material, a Post analysis later found.

Before the server received a digital certificate marking the use of standard encryption, Clinton and her aides exchanged notes touching on North Korea, Mexico, Afghanistan, military advisers, CIA operations and a briefing for Obama.

Right. So Drake gets his home raided and faces 35 years for “retaining” 5 documents. And Clinton appeared to run classified documents through her unprotected home email server pretty much all the time. Now, it’s likely that a lot of those 2093 emails involved “overclassification” situations that are all too common in government. And I’m certainly not making the argument that Clinton should necessarily face jail time (let alone 35 years or more) for the use of her own email server.

I’m just pointing out the seeming difference in treatment that someone like Drake gets, as a known “whistleblower” on government waste, as compared to Clinton, a front-runner for the Presidential nomination and a former First Lady, Senator and Secretary of State.

Others have certainly noticed this double standard as well. Last summer, the ACLU called out this seeming unequal treatment, as did the Daily Beat, which referred to it as a double standard. Meanwhile, Glenn Greenwald has — quite reasonably — gone even further, in pointing to Clinton’s own comments on another situation involving classified emails: the case against Chelsea Manning. That involved the leaking of classified State Department cables while Clinton was Secretary of State. Clinton condemned Manning and insisted that the State Department had to be able to keep communications protected. And, yes, she said this at a time when her own emails were being run off a server in her home’s basement.

Who knows what’s going to happen with Clinton’s email situation, but at the very least, the differential treatment she’s received so far, compared to whistleblowers, should highlight just how ridiculous the treatment was for those whistleblowers. And it should reinforce the nature of the “high court/low court” distinction among the politically powerful. They get to avoid the kind of legal troubles the “little people” deal with.

Filed Under: classified information, clinton emails, confidential information, differential treatment, emails, high court, hillary clinton, low court, thomas drake, treatment, whistleblowers

UK Data Retention Snooping Law Thrown Out One Year Later

from the now-let's-stop-the-repeats dept

Almost exactly a year ago, we wrote about how the UK Parliament rushed through a dangerous data retention bill, known as the Data Retention and Investigatory Powers Bill, or DRIP, with little debate. As soon as it became law, challenges were filed — and now the UK’s High Court has struck down the law. As you may also recall, the rush to pass DRIP was in response to an EU Court of Justice ruling that said widespread data retention violated privacy rules. And, rather than take the hint, the UK government used it as an excuse to try to just rewrite the rules to let them continue snooping on the public.

Not surprisingly, the current UK government (which has been looking to expand its snooping powers rather than limit them) has made it clear that it will appeal this ruling. Furthermore, the court is allowing the government until early next year to see if it can fix the law by itself:

The judges said that the first section of Dripa “does not lay down clear and precise rules providing for access to and use of communications data” and should be “disapplied”.

But the judges said their order on disapplication should be suspended until after March 31 2016 “to give Parliament the opportunity to put matters right”.

That’s an interesting way of going about things: we see you’ve been violating the rights of the public for a year now, and so we’ll give you another 9 months to do so and hope that during that time you’ll figure out a way to maybe not violate the public’s rights so much.

Filed Under: data retention, david cameron, drip, high court, privacy, snooper's charter, theresa may

Compare And Contrast Prosecution And Sentences Of David Petraeus With Government Whistleblowers

from the high-court,-low-court dept

Former CIA director David Petraeus received his sentence yesterday for the sweetheart plea deal he struck with the Justice Department after he was discovered to have leaked highly classified information to his biographer and lover Paula Broadwell. As was widely anticipated, the celebrated general received no jail time and instead got only two-years probation plus a $100,000 fine. (As journalist Marcy Wheeler has pointed out, that’s less than Petraeus receives for giving one speech.)

The gross hypocrisy in this case knows no bounds. At the same time as Petraeus got off virtually scot-free, the Justice Department has been bringing the hammer down upon other leakers who talk to journalists?sometimes for disclosing information much less sensitive than Petraeus did. It’s worth remembering Petraeus’ leak was not your run-of-the-mill classified information; it represented some of the most compartmentalized secrets in government. Here’s how the original indictment described the eight black books Petraeus handed over to Paula Broadwell:

The books “collectively contained classified information regarding the identifies of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings? and discussions with the president of the United States.”

While Petraeus’ supporters claim none of this information was ever released to the public after he leaked it to Broadwell, that does not matter in leak cases. You can just ask former CIA officer John Kiriakou, who disclosed the names of two supposedly undercover CIA officers to a researcher. The names were never published, but Kiriakou still got thirty months in jail.

Let’s also not forget that David Petraeus lied to FBI officials when they questioned him about his leak. For a reason the Justice Department never explained, he wasn’t charged for lying at all. As the New York Times pointed out today, “Lying to federal agents is a felony that carries a sentence of up to five years in prison. The Justice Department has used that charge against terrorists, corrupt politicians and low-level drug dealers.” Just apparently not former CIA directors.

Petraeus’ deal comes just days after federal prosecutors recommended another sentence to a convicted leaker who worked for the same Central Intelligence Agency?Jeffrey Sterling. In Sterling’s case the prosecutors are calling for twenty-four years of prison time. Sterling was convicted of leaking information to Pulitzer Prize-winning reporter James Risen about a botched CIA mission that occurred almost two decades ago. The lawyer for former State Department official Stephen Kim, currently in jail for leaking innocuous information to Fox News’ James Rosen, has also objected to the “profound double standard” in Petraeus’ case versus Kim’s.

To be fair, the rank-and-file at the FBI and Justice Department seem to recognize how egregious the hypocrisy surrounding Petraeus’ case is: while Attorney General Eric Holder himself signed off on the lenient deal, he reportedly did so over strenuous objections from FBI and DOJ officials.

Ultimately, no one should be charged under the Espionage Act for leaking information to journalists, but if the government is going to bring charges against low-level officials, it has a responsibility to do so against high-ranking generals as well. And actually, the Justice Department’s reasoning behind not seeking a trial for Petraeus is quite telling for just how unjust the Espionage Act is. As the New York Times reported:

[W]ithout a deal, the Justice Department would have faced the prospect of going to trial against a decorated war hero over a disclosure of secrets that President Obama himself said did not harm national security. Plus, a trial would require the government to reveal some of the classified information.

The Justice Department’s fear about an embarrassing trial is one the most egregious aspects of Espionage Act prosecutions against leakers and whistleblowers: defendants can be found guilty even if there was no damage to national security at all. It’s not one of the elements of the crime, so prosecutors don’t have to prove it. By forgoing a trial because they are afraid of graymail, the government is also basically saying to future leakers “if you’re going to leak classified information, make sure it’s something really classified.”

It’s possible that Petraeus’ deal was so egregious that this could be good news for other leakers. The Daily Beast’s Kevin Mauer argued as much earlier today:

Petraeus’s relatively light punishment will likely have lasting ramifications on future leak cases, national security lawyers said. They argue the government is cutting its own throat by offering him a more lenient sentence in the wake of harsher penalties to other leakers and creating a double standard that can be exploited by defense attorneys in future cases.

However, given the government’s unrelenting pursuit of Sterling, there is little chance of this having a lasting effect. Unfortunately, the Petraeus case will go down in history as one of the most blatant examples of the inherent unfairness of leak trials and the two-tiered system of justice that whistleblowers often face.

Reposted from the Freedom of the Press Foundation

Filed Under: criminal justice, david petraeus, high court, leakers, leaking, low court, sentences, whistleblowing

Should The Punishment For Falsely Accusing People Of A Crime Match The Punishment For The Crime Itself?

from the false-accusations-everywhere dept

Two very different stories, but both with some startling parallels.

First, Radley Balko’s story about how police and attorneys in Louisiana apparently flat out lied to claim that a process server “assaulted” a police officer he was serving (in a police brutality case, no less). There are lots of details there, but suffice it to say, the process server, Douglas Dendinger, did not assault Chad Cassard at all — even though he was soon arrested for it, and Cassard managed to present seven witnesses (including police officers and two prosecutors who witnessed Dendinger serving the papers on Cassard). Dendinger went through two years of hell because of this, before the case was dropped when cell phone videos made by Dendinger’s wife and nephew showed that there was no assault at all. Police and prosecutors lying to protect one of their own? Sure, it happens. But now that it’s been exposed, Balko has an important question:

Why aren?t the seven witnesses to Dendinger?s nonexistent assault on Cassard already facing felony charges? Why are all but one of the cops who filed false reports still wearing badges and collecting paychecks? Why aren?t the attorneys who filed false reports facing disbarment? Dendinger?s prosecutors both filed false reports, then prosecuted Dendinger based on the reports they knew were false. They should be looking for new careers ? after they get out of jail.

If a group of regular citizens had pulled this on someone, they?d all likely be facing criminal conspiracy charges on top of the perjury and other charges. So why aren?t these cops and prosecutors?

I could be wrong, but my guess is that they?ll all be let off due to ?professional courtesy? or some sort of exercise of prosecutorial discretion. And so the people who ought to be held to a higher standard than the rest of us will once again be held to a lower one.

Second, we have last week’s story about Total Wipes sending an automated takedown notice to Google demanding tons of perfectly legitimate, non-infringing web pages be taken out of Google’s index for infringement. Total Wipes blamed it on a “bug” in its program, which would be more convincing if it hadn’t happened before.

This second story has Rick Falkvinge, quite reasonably, wondering why the penalties for false takedowns aren’t equivalent to the penalties for infringement, saying that this is the way it works in other parts of the law:

The thing is, this should not even be contentious. This is how we deal with this kind of criminal act in every ? every ? other aspect of society. If you lie as part of commercial operations and hurt somebody else?s rights or business, you are a criminal. If you do so repeatedly or for commercial gain, direct or indirect, you?re having your ill-gotten gains seized. This isn?t rocket science. This is standard bloody operating procedure.

The copyright industry goes ballistic at this proposal, of course, and try to portray themselves as rightsless victims ? when the reality is that they have been victimizing everybody else after making the entire planet rightsless before their intellectual deforestation.

The irony is that at the same time as the copyright industry opposes such penalties vehemently, arguing that they can make ?innocent mistakes? in sending out nastygrams, threats, and lawsuits to single mothers, they are also arguing that the situation with distribution monopolies is always crystal clear and unmistakable to everybody else who deserve nothing but the worst. They can?t have it both ways here.

Of course, his claim that this is true in “every” other area is proven somewhat false by the first story above. But the underlying factors in both cases are nearly identical, and it actually goes back to a previous concept that Falkvinge has written about: the “high court” and the “low court.” The “nobility” gets a special court when they break the law, with limited consequences. The lowly commoners have to go to the “low court” where the consequences are quite severe. Falkvinge’s original point is that we still seem to have the same thing today, and that’s clearly shown in both stories above.

If you’re in power, you can lie about things to accuse others of serious things that can have serious consequences for them, and there’s no real punishment. Instead, it’s brushed off as not being important — sometimes with expressions of understanding about how “these things can happen.” I’m reminded of the phrase that we “judge ourselves according to our intentions, but others based on their actions,” and that seems to be partly at work here as well (though I question the “intentions” of the prosecutors who lied above). The lies are written off as minor “mistakes,” whereas those accused are given no such benefit of the doubt. It’s a big problem in the copyright space, certainly, but it’s true in many other areas of society as well.

Filed Under: assault, copyright, crime, false accusations, high court, lies, low court, process server, punishment, radley balko, rick falkvinge
Companies: total wipes