Before the Freedom of Information Act, I used to say at meetings, ‘The illegal we do immediately; the unconstitutional takes a little longer.’ [laughter] But since the Freedom of Information Act, I’m afraid to say things like that.
Henry Kissinger, in a 1975 conversation at the Foreign Minister’s Office in Ankara, Turkey. WikiLeaks, Cable 0860114-1573.
Background, via Slate:
Wikileaks released a searchable database of over 1.7 million diplomatic cables from the years 1973 to 1976 today. Because so many of them — over 200,000 — are connected to former U.S. Secretary of State Henry Kissinger, the collection is being informally dubbed the “Kissinger Cables.” But unlike previous Wikileaks document collections, this release isn’t a whistleblower leak. Instead, it’s the result of an effort to obtain and organize public documents obtained from the National Archives and Record Administration.
So, what’s in them? The findings, so far, are more interesting than they are damning. In that light, the “Kissinger Cables,” officially called “PlusD,” seem most notable as a well-organized, historical archive of the scope, tone, and depth of U.S. diplomacy around the world.
FJP: Pesky FOIA.
Late last week Barrett Brown, a former Anonymous spokesman, was indicted over an Anonymous hack of Stratfor, a global intelligence firm. Along with thousands of internal emails that Wikileaks has been publishing, Anonymous released credit card information of both Stratfor employees and its clients.
Brown is facing multiple charges but the very first is very odd: Brown posted a hyperlink to the stolen credit card information that was, by then, publicly available online.
In a press release, the FBI writes:
According to the indictment, Brown transferred a hyperlink from an Internet Relay Chat (IRC) channel to an IRC channel under his control. That hyperlink provided access to data stolen from the company Stratfor Global Intelligence (Stratfor), which included more than 5,000 credit card account numbers, the card holders’ identification information and the authentication features for the credit cards, known as the Card Verification Values (CVV). By transferring and posting the hyperlink, Brown caused the data to be made available to other persons online, without the knowledge and authorization of Stratfor and the card holders.
Here’s the rub for reporters. From Gawker’s Adrian Chen:
As a journalist who covers hackers and has “transferred and posted” many links to data stolen by hackers—in order to put them in stories about the hacks—this indictment is frightening because it seems to criminalize linking. Does this mean if a hacker posts a list of stolen passwords and usernames to Pastebin, the popular document-sharing site, and I link to them in a story or tweet I could be charged with “trafficking in stolen authentication features,” as Brown has been? (I wouldn’t typically do this, but I’ve seen plenty of other bloggers and journalists who have.) Links to the credit card number list were widely shared on Twitter in the wake of the Stratfor hack—are all the people who tweeted links going to be rounded up and arrested, too?
The question here isn’t whether its ethical to link to such information but whether it’s legal. The indictment against Brown claims no, no it’s not.
Remember, over five million emails were stolen, are now on Wikileaks and are being used by news organizations to report on global intelligence operations. By the indictment’s logic, linking directly to them is a crime.
We have been worried about the direction Wikileaks is going for a while. In the recent month the focus moved away from actual leaks and the fight for freedom of information further and further while it concentrated more and more on Julian Assange. It goes without saying that we oppose any plans of extraditing Julian to the USA. He is a content provider and publisher, not a criminal.
But Wikileaks is not - or should not be - about Julian Assange alone. The idea behind Wikileaks was to provide the public with information that would otherwise being kept secret by industries and governments. Information we strongly believe the public has a right to know. But this has been pushed more and more into the background, instead we only hear about Julian Assange, like he had dinner last night with Lady Gaga. That’s great for him but not much of our interest. We are more interested in transparent governments and bringing out documents and information they want to hide from the public…
…The conclusion for us is that we cannot support anymore what Wikileaks has become - the One Man Julian Assange show. But we also want to make clear that we still support the original idea behind Wikileaks: Freedom of information and transparent governments. Sadly we realize that Wikileaks does not stand for this idea anymore.
Anonymous, Statement on Wikileaks.
Wikileaks alleges that because of the close connection between the company and the government, “these GI Files releases will shed insight into key U.S. federal election players.” For example, the first release of almost 14,000 files are from 2011 and contain the keywords “republican”, “GOP”, “Romney”, “RNC” and “GOP”.
Further, the files were originally obtained by Anonymous-related groups.
And that set Anonymous off. Or, since it’s a decentralized activist group, it set off those behind @YourAnonNews who wrote to their 640,000 followers, “This, dear friends will lose you all allies you still had. @Wikileaks, please die in a fire, kthxbai.”
Slate has two recent articles that illustrate a growing fear of facts. The first looks at the Republican party generally and Mitt Romney specifically.
It’s tough times for facts in America. First Mitt Romney—interviewing for the position of president—declined to release his tax returns because, as he explained, the Obama team’s opposition research will “pick over it” and “distort and lie about them.” He isn’t actually claiming that his opponents will lie. He’s claiming he’s entitled to hide the truth because it could be used against him. As Jon Stewart put it, “You can’t release your returns, because if you do, the Democrats will be mean to you.” These are tax returns. Factual documents. No different than, say, a birth certificate. But the GOP’s argument that inconvenient facts can be withheld from public scrutiny simply because they can be used for mean purposes is a radical idea in a democracy. It has something of a legal pedigree as well.
Probably not coincidentally, last week Senate Republicans filibustered the DISCLOSE Act—a piece of legislation many of them once supported—again on the grounds that Democrats might someday use ugly facts against conservatives. The principal objection to the law is that nasty Democrats would like to know who big secret donors are in order to harass, boycott, and intimidate them. The law requires that unions, corporations, and nonprofit organizations report campaign-related spending over $10,000 within 24 hours, and to name donors who give more than $10,000 for political purposes. Even though eight of the nine justices considering McCain-Feingold in Citizens United believed that disclosure is integral to a functioning democracy, the idea that facts about donors are dangerous things is about the only argument Senate Republicans can muster. Last week even Justice Antonin Scalia told CNN’s Piers Morgan that “Thomas Jefferson would have said the more speech, the better. That’s what the First Amendment is all about. So long as the people know where the speech is coming from.”
That’s a ringing defense of the need for disclosure, which Scalia has always supported.
Not to be outdone, the State Department just won a case about the secrecy behind the diplomatic cables Wikileaks released in 2010 and 2011.
The government, it appears, would like to pretend that never happened even though anyone who cared has taken a look, and their contents have been reported around the world. If you want to double check that they’re out in the public, you can do so here.
Back to Slate:
It sounds like something from Catch-22. A U.S. district court judge on Monday ruled that diplomatic cables published worldwide by WikiLeaks, the New York Times, the Guardian, et al., are actually still secret. Why? Because the government says they are secret…
…The government’s logic, and the judge’s, is—and I do not think I am exaggerating or distorting their arguments here—that just because something is public doesn’t mean it isn’t also secret. In this case, the cables are secret because they contain information that could be harmful if released. Never mind that they’ve already been released by WikiLeaks. They still could be harmful if released by the government.
The ruling seems to uphold a broader U.S. government philosophy that even when everyone knows the government is doing something—conducting drone strikes in Yemen, waterboarding prisoners in Guantanamo—the government can continue to pretend that it is not doing it, and the courts will back it up.
Related: See Glenn Greenwald’s article in today’s Salon about Dianne Fienstein, California Democrat and Chair of the Senate Intelligence Committee, and her continued calls to prosecute those disclosing sensitive government information (eg. drone wars). In it he writes about how government is defining what is a permissible leak and who permissible leakers are (spoiler alert: themselves).
“In sum,” Greenwald writes, “leaks of classified information are a heinous crime when done to embarrass or undermine those in power, but are noble and necessary when done to bolster them.”