steve bannon – Techdirt (original) (raw)

Court Says City Of Baltimore's 'Heckler's Veto' Of An Anti-Catholic Rally Violates The First Amendment

from the fearing-for-the-people-who-aren't-the-people-responding-to-the-other-people dept

One of the more common violations of the First Amendment is viewpoint discrimination. When entities run into speech they don’t like, they often steamroll Constitutional rights in their hurry to shut this speech down.

The government is allowed some time and place restrictions on speech, but it is very limited in its options. To expand these options, government entities will often say things about “public safety” to justify their incursion on people’s rights. These justifications rarely justify the overreach.

Maybe these things happen because governments (incorrectly, in some cases) assume those whose rights have been abridged won’t sue. Maybe they happen because governments assume nebulous “public safety” concerns won’t be examined thoroughly if they are sued. Or maybe they just assume that, because they’re using the public’s money to both violate rights and defend against accusations of rights violations, none of this really matters because it isn’t any particular government employee’s money at stake.

That brings us to this case [PDF], where a Maryland federal court has ruled the government had no justifiable reason to shut down a “prayer rally.” What it did have were some unjustifiable reasons, which were mainly related to the speakers and the kind of speech the government expected to be uttered… I mean, if it hadn’t unconstitutionally shuttered the event. (via Courthouse News Service)

Here’s some brief background by the court, which doesn’t highlight the most likely trigger: alt-right figurehead Milo Yiannopoulos, who has been banned from [name a social media platform].

St. Michael’s, a non-profit organization, “is a vocal critic of the mainstream Catholic Church,” including the United States Conference of Catholic Bishops (“USCCB”). Plaintiff seeks to hold the prayer rally and conference to criticize the Church, particularly with respect to child sexual abuse committed by members of the clergy, and it wants to do so on a date that coincides with the USCCB’s Fall General Assembly. The USCCB plans to meet from November 15 – 18, 2021 at the Waterfront Marriott Hotel (“Hotel”), a private facility located near Pier VI.

On or about August 5, 2021, weeks after plaintiff had paid a $3,000 deposit to SMG for use of the Pavilion, SMG, on instruction of the City, notified St. Michael’s that plaintiff could not rent the Pavilion. The City cited safety concerns linked to some of the people who were identified as speakers at the event.

Given the average government’s “for the children” protestations whenever it plans to violate rights, you’d think a rally criticizing a religious entity infamous for sexual abuse of children would be right up its rhetorical alley. You’d assume wrong — not if its “allies” include people the elected officials of Baltimore find noxious. (That list includes Yiannopoulos, former Trump advisor Steve Bannon, and Newsmax commentator Michelle Malkin.)

St. Michaels sued, alleging First Amendment violations. The court (unsurprisingly) agrees. First, it notes a similar rally by the same group in 2018 which resulted in no acts of violence or any other threats to public safety. Nevertheless, city officials insisted this time would be different.

Michael Huber, Mayor Scott’s Chief of Staff, avers that the discussions between SMG and St. Michael’s “came to the attention” of the City in July 2021. In particular, the City learned that St. Michael’s planned a rally featuring speakers “known for encouraging violent actions that have resulted in injuries, death, and property damage.” In the City’s view, some of the speakers would “provoke a strong reaction and raise the potential for clashes and disturbances,” given the “very real potential [that the speakers] would use [the rally] to incite violence and public disruption.”

While it’s true some of the threat matrix may have changed following an unprecedented attack on the Capitol building in Washington, DC by so-called conservatives apparently hoping to negate a peaceful presidential election, no previous experience with this group should have led city officials to this conclusion. And, while the forum being rented was privately-owned, the city has some say in the issuance (and, in this case, rescinding) of contracts. When it interceded — for internally inconsistent reasons — it violated the plaintiff’s rights.

Without question, the City reacted to a perceived safety concern arising from past use of inflammatory remarks by some of the rally speakers. In thwarting the rally, the City essentially invoked or relied on the heckler’s veto. And, in doing so, it exercised complete, unfettered discretion; it acted on an ad hoc basis, without any standards. Further, it has presented somewhat shifting justifications for its actions, with little evidence to show that the decision was premised on these justifications.

As to the matter of discretion, the City apparently has unbridled discretion to determine whether, when, and how to intervene in bookings of the Pavilion. The record before the Court indicates that the process used here was entirely ad hoc. After plaintiff’s plans came to the attention of the City, the City decided to intervene with SMG, requiring SMG to terminate negotiations with St. Michael’s. No policies, guidelines, or procedures have been brought to the attention of the Court providing any factors or systematized approach governing the City’s actions here. As far as the Court is aware, none exist.

As the court notes, the main concern the city had appeared to be about those who would show up and protest the St. Michael’s protest, rather than the supposed “incendiary” participants working with St. Michael’s. That only adds to the list of ways the city violated the First Amendment.

The City’s invocation of a heckler’s veto also raises serious concerns that its decision was motivated by viewpoint discrimination. Huber cited the prospect of counter protestors when explaining the City’s decision. And, at the hearing, counsel for the City placed considerable weight on the City’s concerns as to counter protestors and the disruption and potential violence that might ensue. In other words, the City seems to have based its decision on the anticipated reaction of counter protestors, which is precisely the “persistent and insidious threat[s] to first amendment rights” discussed in Berger, 779 F.2d at 1001…

This is not an acceptable justification for regulating speech.

And more along those same lines:

As the Ninth Circuit put it in Seattle Mideast Awareness Campaign, although this concern might receive less weight outside of a traditional or designated public forum context, it is still relevant when “used as a mere pretext for suppression expression” based on viewpoint. This includes, for example, “where the asserted fears of a hostile audience reaction are speculative and lack substance.”

Such is the case here. The City cannot conjure up hypothetical hecklers and then grant them veto power.

St. Michael’s gets its injunction against the City of Baltimore. The show will go on. The City violated the group’s rights when it decided the people who didn’t secure the venue were so potentially dangerous the speakers who rented the venue shouldn’t be allowed to speak. A heckler’s viewpoint is indistinguishable from viewpoint discrimination in situations like these. The city decided in favor of one viewpoint (the counterprotesters [a.k.a., the hecklers] and decided the other viewpoint (St. Michael’s) had no right to be heard.

Filed Under: 1st amendment, baltimore, catholic church, free speech, michelle malkin, milo yiannopoulos, prior restraint, rally, steve bannon
Companies: st. michael's

Biden Fires Steve Bannon Protege, Who Tried To Turn Voice Of America Into A New Breitbart

from the and-he-whines-about-partisanship-on-the-way-out dept

Last summer we covered how Trump had hired Michael Pack, a prot?g? of Steve Bannon, to run US Agency for Global Media. USAGM is the organization that runs Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, and Middle East Broadcasting. It also runs the Open Technology Fund (which itself spun out of Radio Free Europe, and helped to fund a variety of important technologies for enabling free speech among dissidents and activists). It was clear from the beginning that Pack’s plan was to (a) recraft the media organizations to be propaganda machines and (b) shift OTF’s funding to some organizations with security/encryption techniques that were not widely trusted. Pack fired a bunch of people in a move that a court later rejected, noting that Pack did not have the authority to do so.

He also began a witch hunt at Voice of America, seeking to investigate journalists for “anti-Trump bias” and get rid of them. A reporter who asked a perfectly reasonable question to Mike Pompeo was reassigned.

As we pointed out, this kind of meddling, beyond likely breaking the law, was also doing tremendous damage to the credibility of these organizations, and certainly to the important technical work that OTF funds.

So it was good to see that one of Biden’s first moves upon getting into office was to demand Pack’s resignation and also to shuffle the leadership at Voice of America.

In an act of true projection, on the way out the door Pack whined about how being fired was a partisan act and would harm credibility. This is all bullshit. From day one, Pack was a partisan hack who tried to turn Voice of America into a pro-Trump media organization.

Whether or not people like or appreciate the work that USAGM and its various organizations do, there is no doubt that Pack’s efforts harmed those organizations’ credibility. Good riddance.

Filed Under: joe biden, michael pack, otf, partisanship, propaganda, steve bannon, usagm, voice of america
Companies: otf, usagm, voice of america

Cambridge Analytica's Crime Was Not Violating Your Privacy Or Taking Data From Facebook, It Was A Massive Campaign Finance Scam

from the get-the-scandals-right dept

If you asked most people what the Cambridge Analytica scandal was about, many would insist that it involved the company illegally sucking up all sorts of data from Facebook and using that to nefariously micro-target people with ads or information in a way that supported Donald Trump or suppressed the interest in voting for Hillary Clinton. As we pointed out years ago, it seemed like everyone was very much misinterpreting what happened with Cambridge Analytica.

The reality is now coming out, but so many people are so bought into the original myth story that I doubt it will get much attention. First off, over in the UK, government investigators have now admitted that Cambridge Analytica didn’t really do anything special or have any access to data that lots of others had:

Detail of the data processing practices undertaken by SCL/CA is set out at Annex 2, but, in summary, we concluded that SCL/CA were purchasing significant volumes of commercially available personal data (at one estimate over 130 billion data points), in the main about millions of US voters, to combine it with the Facebook derived insight information they had obtained from an academic at Cambridge University, Dr Aleksandr Kogan, and elsewhere. In the main their models were also built from ?off the shelf? analytical tools and there was evidence that their own staff were concerned about some of the public statements the leadership of the company were making about their impact and influence.

Basically, the company was buying up a ton of data that lots of others also had access to and using off-the-shelf analytical tools that lots of others had access too… but then puffing themselves up to have some sort of secret sauce. They had none.

That doesn’t mean there weren’t issues though. But the issues were not so much about Facebook coughing up this data to Cambridge Analytica, but rather how Cambridge Analytica was actually a tool for the Mercer family to engage in campaign finance violations by illegally coordinating between a Mercer-created super PAC and the Trump Campaign. As you hopefully know, the whole concept of super PACs is based on the idea that they cannot coordinate with the actual campaigns. Most people recognize that in practice, this is bullshit but they at least try to maintain an appearance of separation. It now appears that the Mercers did no such thing, and Cambridge Analytica was at the center of it all.

A megadonor like Robert Mercer may only contribute millions to a super PAC if it operates independently of?and does not coordinate with?the candidate that it supports.

By the Mercer-owned Cambridge Analytica simultaneously working for the campaign and the super PAC, it was in a position to use strategic information gained from its work for Trump to develop and target the super PAC?s ads supporting Trump.

Federal law limits how a vendor may work for both a candidate and a super PAC backing that candidate. Unless a ?common vendor? like Cambridge Analytica creates and complies with an internal firewall separating its work for the candidate from the work for the super PAC, it can act as a conduit for unlawful coordination.

Usually, it can be difficult to assess whether a vendor firewalled their work for the campaign from the super PAC because companies are not required to make their firewall policies public, and they tend to avoid disclosing details about internal operations.

Yet the newly published documents suggest a striking overlap between Cambridge Analytica?s work for Trump and for the Mercer-backed pro-Trump super PAC, which indicates that any firewall policy was not followed.

In other words, there’s a real scandal here, but it’s not a “Facebook data” scandal, so much as it’s a Mercer/Trump campaign finance violation scandal.

However, I’ll bet that years into the future, people will remember the other non-scandal instead of what appears to be the real issue.

Filed Under: campaign finance, data, donald trump, mercer family, privacy, robert mercer, steve bannon, superpac
Companies: cambridge analytica, facebook, scl

Steve Bannon The Latest To Abuse Consumer Location Data

from the ill-communication dept

Tue, Jul 23rd 2019 06:27am - Karl Bode

However bad Facebook’s privacy issues are, the telecom sector’s have long been as bad, if not worse. That’s been most recently exemplified by the industry’s headaches surrounding the collection and sale of sensitive customer location data. Scandal after scandal has revealed that for the better part of the last decade, cellular phone companies have been collecting and selling your location data to a long line of often dubious companies and organizations, who then did the bare minimum to secure this data. Everyone from law enforcement to stalkers has been allowed to abuse this data, and your privacy.

The latest case in point: a new investigation by Think Progress found that Steve Bannon also managed to get a hold of this data and use it for political targeting purposes. According to the report, Bannon and a group dubbed CatholicVote used the cell-phone location data of people who had visited Roman Catholic churches in Dubuque, Iowa, in 2018 to target them with get-out-the-vote ads:

“If your phone?s ever been in a Catholic church, it?s amazing, they got this data,? Bannon told director Alison Klayman as they sat in his Washington, D.C., home on the eve of the 2018 midterm elections. “Literally, they can tell who?s been in a Catholic church and how frequently,? Bannon added. ?And they got it triaged.”

Given this data is valuable to everybody from political operatives to city planners and marketing departments, the gold rush to sell this data has resulted in an idiotic stampede where privacy and consumer rights were a distant afterthought, if they were thought about at all. And while much of this data is “anonymized,” numerous studies have documented how that doesn’t really mean all that much. When the report authors contacted CatholicVote, their response was, basically, “everybody does it”:

“I encourage you to do some more due diligence on how geo-targeted marketing is being utilized by companies everywhere, including organizations (and many campaigns),? Storen said in the email. ?Finally, we are not interested in commenting further on this story.”

The use of geofenced location data certainly isn’t new. Neither is the idea of targeting religious communities as part of political campaigns (the Michigan GOP did something similar last year). And the organization is right in implying that this practice is widespread and fairly common. It’s not particularly hard to find a data broker middle man willing to do some variation of this for anybody who can pay for it. It’s also worth noting that for all the attention this story got, it didn’t actually seem to work, since translating the data into actual votes is the hard part.

That said, that doesn’t make any of this ethical. Nor does it absolve the cellular carriers and data broker middlemen of peddling private consumer data that, in many instances (like 911 data) isn’t legal to sell. And again, none of these companies are doing a very good job securing this data or preventing it from falling into the hands of those with criminal intent. And “everybody does it” doesn’t absolve the FCC of having done absolutely nothing in terms of confirming cellular carrier promises that they’re no longer selling this data to every nitwit with a nickel and a dream.

Filed Under: churches, location data, political advertising, privacy, steve bannon
Companies: catholicvote

By Complaining About US's 'Very Weak' Libel Laws, Trump Is Actually Shitting On Our 'Very Strong' First Amendmet

from the free-speech-is-a-thing,-buddy dept

As you likely recall, last week, lawyer Charles Harder* sent a letter on behalf of Donald Trump threatening to sue former advisor Steve Bannon, author Michael Wolff, and publisher Henry Holt for defamation having to do with the publication of Wolff’s new book about Trump. The full letter to Wolff and Henry Holt & Co. was published by the Hollywood Reporter and does not list out any statements that are claimed to be defamatory — which is often a hallmark of a totally bumptious defamation threat.

Over the weekend, during a press conference, Trump appeared to admit that he can’t actually sue for defamation. In the midst of a Trumpian ramble in response to a question about the book, he includes the following:

I consider it a work of fiction and I think it’s a disgrace that someone’s able to have something, do something like that. The libel laws are very weak in this country. If they were strong, it would be very helpful. You wouldn’t have things like that happen where you can say whatever comes to your head.

This isn’t the first time, of course, that Trump has made similar comments. Early in 2016, while on the campaign trail, he famously promised to “open up the libel laws” in order to sue his critics. And, going back even further, Trump has complained about US libel laws in reference to a case he lost, where he sued a writer who said Trump wasn’t really as rich as Trump claimed (Trump lost that lawsuit, no matter what his tweet here says):

For a brief moment, after the election, Trump seemed to realize that “opening up” libel laws might come back to bite him. In an interview with the NY Times he backtracked on his feelings towards US defamation law:

Mark Thompson: [A]fter all the talk about libel and libel laws, are you committed to the First Amendment to the Constitution?

Trump: Oh, I was hoping he wasn’t going to say that. I think you’ll be happy. I think you’ll be happy. Actually, somebody said to me on that, they said, ‘You know, it’s a great idea, softening up those laws, but you may get sued a lot more.’ I said, ‘You know, you’re right, I never thought about that.’ I said, ‘You know, I have to start thinking about that.’ So, I, I think you’ll be O.K. I think you’re going to be fine.

Defamation law is state-based, so the President can’t actually do anything to change those laws directly (indirectly is another story, but it’s still difficult). But, really, Thompson’s question is the key point here. He’s asking about the First Amendment of the Constitution. The Constitution that the President is under oath to uphold and defend. And yet, the President is now suddenly upset.

And let’s be clear: when the President complains about our “weak libel laws” and says he’d prefer it if people couldn’t “say whatever comes to your head” he’s not actually complaining about our weak libel laws: he’s complaining about our strong First Amendment protections of free expression. And this is particularly ridiculous when we still have Trump supporters insisting that “Donald Trump has single-handedly brought back free speech” because he’s made fun of political correctness a couple times.

However, Trump has made it quite clear that he’s not a fan of the First Amendment when it lets people criticize him. And he’s not a fan of the First Amendment when people he doesn’t like are protesting. People shouldn’t let him get off the hook by saying he’s complaining about “weak libel laws.” That’s not the problem at all. The US’s libel laws are not weak. Our First Amendment protections are strong — as they should be — and as President, he’s supposed to be defending that Constitution, not complaining about how it exposes him to mild criticism.

* Harder is a lawyer for the plaintiff in the still-ongoing lawsuit against us.

Filed Under: anti-slapp, donald trump, first amendment, free speech, libel, michael wolff, steve bannon

Donald Trump Hires Charles Harder To Threaten Steve Bannon With A Lawsuit, Block Publication Of New Book

from the 2018-kicks-off-with-a-bang dept

If you follow political news at all, you probably saw the story yesterday concerning excerpts from Michael Wolff’s upcoming book Fire and Fury, in which former Trump “Chief Strategist” Steve Bannon appeared to completely throw Trump under the bus, allegedly saying a bunch of pretty negative things about Trump and his family — including the headline-making exaggerated opinion that Trump Jr., Kushner and Manafort meeting with Russians was “treasonous.” Trump quickly responded in kind with one of the most incredible statements you’ll see (and that’s saying something, given the speaker) which starts out thusly:

Steve Bannon has nothing to do with me or my Presidency. When he was fired, he not only lost his job, he lost his mind. Steve was a staffer who worked for me after I had already won the nomination by defeating seventeen candidates, often described as the most talented field ever assembled in the Republican party.

It goes on. Normally, none of this would be Techdirt-worthy, but late last night, a new twist was added. According to ABC News, President Donald Trump has hired lawyer Charles Harder to threaten Steve Bannon with a lawsuit for defamation, breach of confidentiality and non-disparagement agreements. And, then, this morning, more news broke of another letter, written by Harder, sent to Wolff and the book’s publisher, demanding that the book not be published at all — and that they send Harder a complete copy of the book.

So, let’s lay our cards on the table here: the lawyer, Charles Harder, is still the lawyer representing a plaintiff in an ongoing lawsuit against us — and we’ve written about many of his other lawsuits, including representing the First Lady, Melania Trump. Not much more needs to be said about him. We’re also not huge fans of Steve Bannon. Or Donald Trump. Or, for that matter, of Michael Wolff, who has a long history of… not being very good at his job. So, if you want to accuse us of bias in this post, consider it spread all around.

ABC did not publish a copy of the actual letter Harder sent Bannon, but did extensively quote it, so we can piece together most of the letter. Here are the various excerpts:

“This law firm represents President Donald J. Trump and Donald J. Trump for President, Inc. On behalf of our clients, legal notice was issued today to Stephen K. Bannon, that his actions of communicating with author Michael Wolff regarding an upcoming book give rise to numerous legal claims including defamation by libel and slander, and breach of his written confidentiality and non-disparagement agreement with our clients. Legal action is imminent.”

“You [Bannon] have breached the Agreement by, among other things, communicating with author Michael Wolff about Mr. Trump, his family members, and the Company, disclosing Confidential Information to Mr. Wolff, and making disparaging statements and in some cases outright defamatory statements to Mr. Wolff about Mr. Trump, his family members, and the Company, knowing that they would be included in Mr. Wolff?s book and publicity surrounding the marketing and sale of his book.”

“Remedies for your breach of the agreement include but are not limited to monetary damages, injunctive relief and all other remedies available at law and equity….”

The letter then cites parts of Paragraph 8 of the Agreement: “Consent to Injunction. A breach of any of your promises or agreements under this agreement will cause the Company, Mr. Trump and each other Trump Person irreparable harm. Accordingly, to the extent permitted by law, and without waiving any other rights or remedies against you at law or in equity, you hereby consent to the entry of any order, without prior notice to you, temporarily or permanently enjoining you from violating any of the terms, covenants, agreements or provisions of this agreement on your part to be performed or observed. Such consent is intended to apply to an injunction of any breach or threatened breach.”

The “Damages and Other Remedies” part of the Agreement is then cited, “Notwithstanding anything to the contrary, each Trump Person will be entitled to all remedies available at law and equity, including but not limited to monetary damages, in the event of your breach of this agreement. Nothing contained in this agreement will constitute a waiver of any Trump Person?s remedies at law or in equity, all of which are expressly reserved.”

“Further, as the prevailing party in any litigation arising out of your breach of the Agreement, Mr. Trump and the Company will be entitled to ‘an award of reasonable legal fees and costs.”

Phew. Donald Trump, of course, has a long history of threatening defamation lawsuits, not all of which actually come to fruition. He has actually sued for defamation a few times — but not very successfully. Also, I’m not sure Trump or his supporters should be all that excited about the idea of a Trump deposition either. In the past, those haven’t always gone well (though I’m sure the media would salivate over such a thing).

Still, having a sitting President sue a former top advisor and former campaign CEO for defamation would be… unusual. Without seeing everything that Wolff has written, nor seeing everything that Bannon has said, it’s difficult to know if anything actually reaches the level of defamation — nor will we speculate one way or the other. Bannon, of course, may not be the most trustworthy narrator — and there are already reports that Bannon planned to use the book “to settle scores” against people he disagreed with — such as Jared Kushner. But portraying people negatively, by itself, is not defamation.

So far, most of the comments revealed certainly appear to be statements of opinion not fact. But the full book has not yet been released. We will note, of course, that a pretty long history of US case law (and the good old First Amendment) makes it quite difficult to successfully claim defamation of a public figure — and there basically is no more public figure right now than Donald Trump. Trump would have to show that Bannon said or wrote false things about Trump, knowing that they were false, or with reckless disregard for the truth. That’s not an easy standard to meet but certainly not impossible. I would be very surprised if Bannon went that far, but it’s not impossible. And, at least in the excerpted portions in the letter, there does not appear to be an explanation of which statements are actually defamatory and how (which is generally what one does if you’re claiming defamation and have an actual basis for such a claim).

Of course, there may be other concerns as well. Some are already raising questions about Wolff’s reporting in the book, which could create an interesting wrinkle should a case actually show up:

Becoming increasingly clear to me that Wolff likely sourced most of the juiciest/most scandalous stories from Bannon’s various bloviating interviews, and simply took his word for how he characterized the acts/beliefs of others. Very problematic. https://t.co/0d1BLQ3UqB

— Jeff B (@EsotericCD) January 3, 2018

And, as noted, Wolff has been accused of questionable journalistic techniques in the past, which he denies, including claims that he “invented or changed quotes.” So it’s hardly surprising that a bunch of articles are popping up digging into Wolff’s history as well. That said, Axios is also reporting this morning that Wolff recorded his interviews, so if officials want to claim that he made up their quotes, that may backfire badly.

As for the breach of confidentiality and non-disparagement clauses, those are other issues entirely. It’s certainly been reported in the past that the Trump campaign made staffers sign confidentiality agreements which appeared to be quite broad. Whether or not such an agreement is actually enforceable would certainly be an interesting legal question, and one that would be watched quite closely in the courts — especially seeing as there has been a lot of discussion lately about how non-disclosure agreements were used to silence the victims of sexual assault, and how perhaps such agreements should be made illegal, but nothing’s really happened on that front so far.

It does seem worth pointing out that there’s a built-in contradiction if Bannon’s statements are both defamatory and a confidentiality agreement violation. Because if it’s violating confidentiality, well, then that’s an admission that it’s true and not made up. It’s possible that Harder is claiming some statements are defamatory while others breach confidentiality –but it’ll be fun determining which ones are which.

So, does Trump (and Harder) have a legitimate case against Bannon? Without seeing the details it’s difficult to say for certain. However, either way, I think we can express our strong opinion that merely having the President of the United States feel the need to bring in a lawyer to threaten a lawsuit against his former top strategist over some negative things said in a book… is a really bad look. It’s no secret that our President appears to have an extremely thin skin when it comes to criticism. Threatening lawsuits certainly doesn’t help change that impression.

As for getting Wolff and publisher Henry Holt & Co. to stop publishing the book entirely? That seems extraordinarily unlikely to happen. The book has already been distributed to bookstores, and getting a judge to order the publication to stop would be clear prior restraint and an absolute violation of the First Amendment. And, for Wolff and the publisher, you have to imagine that they’re loving the threat for all the free advertising it’s providing. There’s a term for that, I think. On top of that, I’d argue that the President of the US demanding an entire book not be published is even more ridiculous than threatening Bannon with a defamation lawsuit. Banning books is most certainly not something the President should be doing and is an affront to the First Amendment. But, of course, Donald Trump has a long history of attacking the First Amendment, so perhaps it’s not a surprise.

Many may argue that the threats alone may be the point of all of this. Threatening (or even suing) Bannon for saying mean things after leaving the White House may be intended more as a message to other Trump White House staffers (past, present and future) to shut the fuck up, rather than talk to the press. Historically, trying to enforce a code of silence in this manner doesn’t tend to work well. It is likely to only lead to more leaking and more talking to the press — though perhaps with less willingness to put names on the quotes. And, on top of that, threatening the publisher and author seem only likely to interest more authors in writing about the Trump White House in hopes of a similar “free advertising” blitz from the President and his lawyers.

Filed Under: charles harder, confidentiality agreement, defamation, donald trump, first amendment, free speech, michael wolff, non-disclosure agreement, steve bannon
Companies: henry holt

Not Only Is Steve Bannon Sitting In On National Security Meetings, The Usual Paper Trail Is Disappearing

from the THINK-BEFORE-YOU-PRINT-[reduce,-redact,-obfuscate] dept

The new boss is not the same as the old boss. While Obama was routinely terrible at keeping his promise to run the Most Transparent Administration, positive changes still resulted in the aftermath of the Snowden leaks. The intelligence community is more open than ever — but then we’re comparing a barely-cracked door to one that has been shut, locked, and bricked over for years.

Now that Trump’s in charge, it looks as though transparency and accountability aren’t ideals closely held by his administration. While Trump has portrayed himself as a populist, there’s very little being done currently that suggests the public — including members employed by the government — is welcome to participate in the process. The public has outlived its usefulness. Post-election, it just doesn’t have much to offer someone who appears to believe he was elected “Boss,” rather than “Top Public Servant.”

Executive orders and presidential directives are being issued without legal guidance or consultation with the agencies affected. And the national security framework is being heavily altered by a man best known for running a highly-partisan website. Steve Bannon, Trump’s chief advisor and former head of Breitbart, is being given a seat at the “Adults” table for National Security Council meetings.

This isn’t totally unusual. Obama often invited his advisors to these meetings. What Obama didn’t do was guarantee them a spot at the head table, much less do so at the expense of actual national security officials. This is what National Security Council meetings look like now, under the new president.

Bannon’s spot is guaranteed. (This, despite reports that Bannon must be approved by Congress. Nothing in the law says Council members need to be confirmed.) But the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff are only invited if Trump feels they should be there. This is an incredibly odd — and possibly dangerous — situation. Two officials considered essential to national security decisions aren’t guaranteed a chance to offer their insight in national security meetings.

Worse, Bannon’s apparently permanent position in the NSC has resulted in him obtaining far more power than presidential advisors normally have. His efforts are further burying national security efforts under thick, black layers of opacity. The council meetings will continue. But it appears any record-keeping will not.

Even before he was given a formal seat on the National Security Council’s “principals committee” this weekend by President Donald Trump, Bannon was calling the shots and doing so with little to no input from the National Security Council staff, according to an intelligence official who asked not to be named out of fear of retribution.

“He is running a cabal, almost like a shadow NSC,” the official said. He described a work environment where there is little appetite for dissenting opinions, shockingly no paper trail of what’s being discussed and agreed upon at meetings, and no guidance or encouragement so far from above about how the National Security Council staff should be organized.

Bannon’s paperless national security “office” appears to be the result of NSC officials doing what they’ve always done: share drafts and briefing notes with affected agencies and their employees. Bannon has put an end to that.

More stringent guidelines for handling and routing were then instituted, and the National Security Council staff was largely cut out of the process.

By the end of the week, they weren’t the only ones left in the dark. Retired Marine Gen. John Kelly, the secretary of homeland security, was being briefed on the executive order, which called for immediately shutting the borders to nationals from seven largely Muslim countries and all refugees, while Trump was in the midst of signing the measure, the New York Times reported.

Cutting down on sharing is only part of the paper trail elimination. The second part ensures there’s less paper than ever to share. As Kate Brannen of Just Security reports, NSC meetings have been memorialized for years with a “summary of conclusions (SOC)” — basically minutes of the meetings, along with guidance resulting from it. Officials could refer back to these notes if they ran into issues directly addressed in those meetings. They were also given an opportunity to correct the record if they felt something has been misconstrued or misquoted. These SOCs are now just relics of the past.

During the first week of the Trump administration, there were no SOCs, the intelligence official said. In fact, according to him, there is surprisingly very little paper being generated, and whatever paper there is, the NSC staff is not privy to it. He sees this as a deterioration of transparency and accountability.

“It would worry me if written records of these meeting were eliminated, because they contribute to good governance,” Waxman said.

What appears to be happening (although there’s been no confirmation yet) is that Steve Bannon is being given the job of putting together Trump-approved SOCs of NSC meetings. These will be the only official records of the meetings and they’re in the hands of a person who has plenty of motivation to only memorialize what adheres to administration talking points or furthers its goals. With the administration in full control of NSC meetings and any resulting narratives, whatever paper trail survives this bizarre reshuffling of power will be mostly useless.

Filed Under: national security, national security council, nsc, paper trail, steve bannon