Fed Court: Just changed interpretation of Espionage Act to cover leaks that are NOT Harmful To USA

[kpete]

Court Eases Prosecutors’ Burden of Proof in Leak Cases
Espionage: Now, with No Damage Envisioned
By: emptywheel Monday July 29, 2013 10:21 am

A recently unsealed decision from Colleen Kollar-Kotelly just changed the interpretation of the Espionage Act for Washington DC to cover leaks that wouldn’t even harm the US.
http://blogs.fas.org/secrecy/2013/07/prosecutors-burden/

Judge Colleen Kollar-Kotelly ruled that the prosecution in the pending case of former State Department contractor Stephen Kim need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially. Her opinion was a departure from a 30 year old ruling in the case of U.S. v. Morison, which held that the government must show that the leak was potentially damaging to the U.S. or beneficial to an adversary. (In that case, Samuel L. Morison was convicted of unauthorized disclosure of classified intelligence satellite photographs, which he provided to Jane’s Defence Weekly. He was later pardoned by President Clinton.)

“The Court declines to adopt the Morison court’s construction of information relating to the ‘national defense’ insofar as it requires the Government to show that disclosure of the information would be potentially damaging to the United States or useful to an enemy of the United States,” Judge Kollar-Kotelly wrote in a May 30 opinion. The opinion was redacted and unsealed (in partially illegible form) last week.

The prosecution must still show that the defendant “reasonably believed” that the information “could be used to the injury of the United States or to the advantage of a foreign nation” and that the defendant “willfully” communicated it to an unauthorized person. But it would no longer be necessary for prosecutors to demonstrate that the information itself could potentially damage national security or benefit an adversary.

Imagine how this ruling could empower prosecutors in the AP UndieBomb 2.0 investigation, in which the AP’s story reported only that the US had thwarted an UndieBomb plot. They didn’t report it until after the White House said they had cleared up a sensitive issue relating to the plot (which in practice ended up being the drone death of Fahd al-Quso).

This would make it easier for the government to prosecute AP’s sources for leaking information that even the government had suggested, to the AP, wouldn’t harm US interests.

- See more at: http://www.emptywheel.net/#sthash.uiSVTkkO.dpuf

[think]

1. WhistleBlowers take note......

[kpete]

11. use

pencil and paper only...

[sabrina 1]

56. And people wonder why Whistle Blowers are now seeking political asylum elsewhere.

As we sink lower and lower to cover up for criminals. Talk about 'abuse of power'.

[tsuki]

73. And the few journalists we have left. nt

[truedelphi]

76. + 1. n/t

[populistdriven]

102. Are the people free?

Well the State fears its own people because they keep resisting.

They resist because the State's vanguard approach to authoritarianism is "crossing the red river rubicon" beyond which effectively resisting it is no longer possible.

Well Jefferson said "when people fear the government, tyranny prevails; when government fears the people, liberty prevails" so by your logic this is a good thing.

Only if the people prevail and collectively stop it. Sure, Manning and Snowden didn't tell us anything we didn't already suspect but resistance always comes at a personal cost and people are unwilling to bear this cost unless they know for certain what they are resisting. Manning and Snowden could see exactly what they needed to resist and now the people do.

Well the State will ostracise and punish them. This should stop any more "resistance".

It only emboldens the people to resist because the State is thereby proving, and people will be certain, that there is much more it is hiding. If it suddenly did what the people wanted the people would no longer need fear the State. Mission Accomplished. As Jacob Applebaum states “When you are followed around, when you are being investigated because of the whim of someone, this is the beginning of the end of your freedom,” and “Data retention is the beginning of the end of many of our freedoms in bulk and that is a very scary thing.”

Well I think the die is cast and most people will accept both what is known and what is suspected as normal. People will minimize the power of the Surveillance State. People will think and say the “state is benign” so long as they themselves are not aware of being targeted. People will also choose to ignore the State's intrusions to make sure they can continue to feed their children.

If the State has the power to make people think that way, are the people free?

/.

[Th1onein]

2. Jesus H. Christ. We are really going downhill now.

This is not good at all. They are destroying the free press. What's left of it anyway.

[woo me with science]

3. Good fucking god.

They are criminalizing investigative journalism. They are criminalizing leaking. They are eliminating every avenue for holding this government in check.

All the promises were lies. They are dismantling the Constitution.

Obama Promises, Including Whistleblower Protections, Disappear From Website
http://www.democraticunderground.com/1014549454

[GiaGiovanni]

17. "Criminalizing Investigative Journalism"

That's exactly right.

[msanthrope]

21. One circuit disagrees with another and you think this means the Republic will

fall??

calm down... judges disagree with each other all time.

[hueymahl]

33. True, but

That is not really the point. This is just another step in a long line of steps started by the Bushies that harms freedom of the press. I wish, wish, wish I could just blame the Bushies, but the current administration is the one advocating the position taken by the judge. So it is not simply good enough to say this is just one judge disagreeing.

This is further evidence of a continued attack on the press and a continued buttressing of federal power at the expense of civil liberties. I'll turn the question back on you. At what point does this kind of activity start to matter to you? How can you tell when you have been boiled just enough? If a democrat was not in the white house, would your reaction be the same?

[msanthrope]

65. Wait a second--Stephen Kim is not press. He has no civil right to leak documents

that he is not authorized to release. And he has no civil right to lie to the FBI. If he's lucky, his lawyers will get the second charge dropped.

James Rosen and Fox News are free to try to get more people to talk to them.

I would be concerned about this activity if Rosen or another reporter were indicted or otherwise named as co-conspirators.

[snappyturtle]

51. Our news sources will revert to society pages

and home making. What reporter won't become fearful
of printing more than family recipes? The seed of fear
has been planted.....even if it goes no further. I think
this is a line in the sand message.

[msanthrope]

66. Is there a reporter being charged? nt

[snappyturtle]

72. None that I know of .....yet. Look there is a reason

for this 'ruling' or decision or whatever.

[arely staircase]

90. i was just about to say

This will be decided farther up the judicial branch ladder.

[msanthrope]

91. I blame Obama for Article III courts. nt

[Egalitarian Thug]

28. Bingo! +1 for you & K&R for the thread.

[nashville_brook]

81. +1

[cui bono]

94. But this is the most transparent presidency ever.

Dontcha know?

[Enthusiast]

95. It's shocking really............nt

[SlimJimmy]

96. Fixed it. All good points.

They are criminalizing investigative journalism. They are criminalizing leaking. They are eliminating every avenue for holding this government in check.

All the promises were lies. They have dismantled the Constitution.

[Fantastic Anarchist]

98. This is how they do it.

Information is power. They can't let us have that.

[djean111]

4. Oh, but chess! Freedom!!!!

I am sure we just do not understand........

[hlthe2b]

5. This is indefensible... absolutely indefensible.

[enlightenment]

27. True, but that's not going

to stop the defenses from springing up like mushrooms from certain quarters of DU.

I rather enjoy the twisted contortions of logic that ensue - it's like watching a Cirque performance for free.

[woo me with science]

6. Say goodbye to what is left of our free press

and the ability of those inside government to sound an alarm to government abuse.

Say goodbye to checks on government tyranny.

[leftstreet]

7. Holy Shit

[Capt. Obvious]

8. Don't worry people

Someone will be along shortly to make Sense of this.

[Bragi]

13. Let's hope it's a Pro /nt

[hlthe2b]

16. ^^Someone read my thoughts....^^

[avaistheone1]

9. Just saying

more proof Obama is worse than Bush, worse than Nixon.

I judge Obama by his actions, not his words.

[Scurrilous]

22. What were Obama's actions in regard to this ruling?

You know, so that we can judge him.

[avaistheone1]

29. Obama loves whistleblowers.

Obama Promises, Including Whistleblower Protections, Disappear From Website

Amid the Obama administration's crackdown against whistleblowers, Change.gov, the 2008 website of the Obama transition team laying out the candidate's promises, has disappeared from the internet.

The Sunlight Foundation notes that it last could be viewed on June 8, which was two days after the first revelations from Edward Snowden (who had then not yet revealed himself) about the NSA's phone surveillance program. One of the promises Obama made on the website was on "whistleblower protections:"

Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

http://www.huffingtonpost.com/2013/07/26/obama-whistleblower-website_n_3658815.html

Obama's Crackdown on Whistleblowers

In the annals of national security, the Obama administration will long be remembered for its unprecedented crackdown on whistleblowers. Since 2009, it has employed the World War I–era Espionage Act a record six times to prosecute government officials suspected of leaking classified information. The latest example is John Kiriakou, a former CIA officer serving a thirty-month term in federal prison for publicly identifying an intelligence operative involved in torture. It’s a pattern: the whistleblowers are punished, sometimes severely, while the perpetrators of the crimes they expose remain free.

The hypocrisy is best illustrated in the case of four whistleblowers from the National Security Agency: Thomas Drake, William Binney, J. Kirk Wiebe and Edward Loomis. Falsely accused of leaking in 2007, they have endured years of legal harassment for exposing the waste and fraud behind a multibillion-dollar contract for a system called Trailblazer, which was supposed to “revolutionize” the way the NSA produced signals intelligence (SIGINT) in the digital age. Instead, it was canceled in 2006 and remains one of the worst failures in US intelligence history. But the money spent on this privatization scheme, like so much at the NSA, remains a state secret.

The Nation http://www.thenation.com/article/173521/obamas-crackdown-whistleblowers#ixzz2aSLQUD6j

The Obama administration actions sent the judge a wet kiss imo.

[Scurrilous]

60. LOL

This particular judge has been making disturbing rulings for years, particularly during the Bush administration.

So yeah, "Blame Obama!!1!"

[delrem]

110. You asked what Obama has been doing.

Clearly it was a troll because you got an answer, not specific to the instance, but general. Info that you already knew when you trolled. The answer didn't "blame Obama", but it sure didn't exonerate Obama and claim consistency with Obama's promises because that would be impossible.

DU seems split along two lines: those who want to secure civil liberties in a new and exponentially unfolding computer age where those liberties have become more difficult to protect; and those who don't give a shit about anything except protecting Obama from criticism.

[rtracey]

42. now thats good

I'm glad I'm not the only Republican on here, I salute you.....

[avaistheone1]

46. Love your kabuki dance

So you are a Bush-hating, Nixon-hating republican! lol

Sorry, I can't stand republicans. Excuse me

[progressoid]

10. Hooray for the land of the free.

[AgingAmerican]

12. But, but....we are at war with Eastasia!!

nt

[DirkGently]

103. Always. n/t

[Savannahmann]

14. Just waiting.

Since it would be immoral to put an innocent man on trial, how long until we are guilty until proven innocent? It seems like we might as well be.

[Bragi]

15. Clarity at last! Whistleblowing =Treason

[woo me with science]

20. +100000

Obama Promises, Including Whistleblower Protections, Disappear From Website
http://www.democraticunderground.com/?com=view_post&forum=1014&pid=549454

[msanthrope]

19. Different circuits, different rulings. Let's hope there's an appeal and SCOTUS

grants cert.

[reusrename]

37. I don't want the current Roberts' court deciding stuff like this.

It's too important and there's no telling what they will come up with.

[msanthrope]

68. As opposed the Rhenquist one? All the more reason make sure the person picking

the SCOTUS is a Democrat.

[reusrename]

69. I'd take O'Conner back in a heartbeat.

I don't think she'd go for abolishing voter's rights or for legalizing bribery. ScAlito is the worm who tipped the balance.

[arely staircase]

92. regarding o'conner

BUSH v GORE

Nuff said.

[treestar]

99. You can try

But I remember there was a ruling about an LGBT issue that a district court made, and DUers informed me it was the law of the land. One even linked to the federal district court map of the circuits to "prove" a district court decision had national sway.

[starroute]

23. I see their reasoning -- it's like not revealing who our enemies are

If they admit that a particular disclosure could harm national security, that's like an invitation for someone to exploit it. Or if they admit that it couldn't, that tells potential trouble-makers they can cross it off their list. So if you're somebody who thinks in those categories, it makes perfect sense not to allow even that tiny scrap of information to get out.

Of course, this creates problems at a deeper level. To start with, if you're trying to prevent all public knowledge of potential weaknesses in your system, you just make it impossible to correct those weaknesses. For example, if you decide that revealing flaws in nuclear plants, or dams, or bridges could aid potential terrorists, you're setting the public up for catastrophic accidents or health risks.

Beyond that, any system of institutionalized secrecy is an invitation to pervasive corruption, graft, and coverups.

All that is even before you get into the question of creeping fascism. But although I don't think the people making these decisions actually worry much about fascism, you might think they'd worry about larger issues of public safety -- and apparently they don't.

[JDPriestly]

48. Good points.

And later in this thread, I mention the damage secrecy and the Espionage, Patriot and similar acts do to the balance of powers.

These acts silence our members of Congress as well as our conscientious public servants. They are repressive and anti-democratic. We don't need them, and we shouldn't have them.

National security, protecting national security. What do those slogans mean?

What is the nation?

Is it we the people?

Or is it the elite who pay for our election campaigns and tell us whom we can vote for?

Security? For what or whom?

For the defense industry or for the American people.

More and more, our defense sector is a bunch of computers and sophisticated equipment, and the system seems more interested in protecting the security of those computers and that equipment than in the things we really need for our national security, that is the security of the people, like clean water, safe streets and bridges, good schools, jobs including industrial jobs, clean air, low energy costs, etc.

[bobthedrummer]

70. What you've described is the reality of "system maintenance" JDPriestly. n/t

"System Maintenance"

[winter is coming]

24. The government must be doing a lot of shit they really don't want us to know about.

It's not about "national security", it's about their security.

[kpete]

25. EXACTLY

It's not about "national security", it's about their security.
peace, kp

[Scurrilous]

26. They're out to get you.

And don't let anyone tell you different!!1!

[Vanje]

82. In nakedly intimidating investigative journalists and whistle-blowers,

They certainly ARE thwarting the public's right to know what the government is doing in our name.

Do you really want your news to be limited to White House Press Releases?

Oh. Wait. I don't think I want to hear your answer to that.

[KoKo]

55. Someone had a post about how much "They Fear Us."

What else could explain this?

Did a gullible Obama get entrapped in this and now he's got to cover himself? What about "Center for American Progress," leading Liberal Dem Publications, Joe Biden and the Kennedy's endorsements of him. How could he have become entrapped in the War Machine, MIC, Wall Street Give Aways and other bad moves along with appointments that were continuation of Bush/Cheney policies when they all were Democrats who we knew had fought against Repug policies urging us to vote for him and even for the second term when some of us were very skeptical. How did our Democratic Institutions allow the MIC to get bigger so that now everyone of them has to cover their butts?

How could this have happened?

[woo me with science]

30. This needs to stay on top. nt

[MotherPetrie]

31. K&R.

[AngryAmish]

32. Looks like it is time to update the enemies list....

1. Jack Anderson
2...

[QC]

34. This judge used to serve on the FISA court.

Can anyone doubt that she was nothing more than a rubber stamp?

http://en.wikipedia.org/wiki/Colleen_Kollar-Kotelly

[Catherina]

38. Thanks for that information. I had no idea

She treated the journalists despicably. Armed guards standing behind them telling them they couldn't tweet and to turn off their internet connection, snooping over their shoulders to see their notes. Despicable stuff. And now this.

[snappyturtle]

47. This from the wikipedia.org link:

On June 16, 2008, Kollar-Kotelly ruled that the Office of Administration was not subject to the Freedom of Information Act, and therefore did not have to release records regarding missing White House e-mails. This was seen as a victory for the Bush Administration in terms of maintaining a tight grip on the flow of information about the executive branch.[7]

On September 20, 2008, Kollar-Kotelly issued a preliminary injunction ordering Vice President of the United States Dick Cheney and the National Archives to preserve all of Cheney's official records.[8]

On July 14, 2004, barely two months after President Bush was forced to end NSA domestic internet metadata collection by Attorney General John Ashcroft, Kollar-Kotelly issued a FISA court order allowing the NSA to resume unconstitutional[2] domestic internet metadata collection.[3]

---------------------------
Kollar-Kotelly is definitedly a team player for the powers that be. We do have a secret govt'....or at least, secretive. Transparency is only for the worker bees.

[Catherina]

59. Thanks, there's no justice left

Eric Holder got Marc Rich a pardon but when it comes to anyone who helps that promised transparency along.

That’s not to mention former NSA official Thomas Drake (the Feds tried to destroys his life because he blew the whistle ); Fox News reporter James Rosen (named a “co-conspirator” by Holder’s DOJ); John Kirakou, formerly in the CIA, who raised concerns about the agency’s torture program, is also in prison for leaking “harmful” (read: embarrassing) classified info; and of course Wikileaks (under U.S. financial embargo); WikiLeaks founder Julian Assange (locked up in Ecuador’s London embassy) and, of course, Bradley Manning, the young, idealistic, soldier who provided the public with perhaps the most critical trove of government documents ever released.

The attitude the Obama administration has toward Manning is revealing. What do they think of him? “Fuck Bradely Manning,” as one White House official put it to me last year during the campaign.

Screw Manning? Lol, screw us.

Perhaps more information will soon be forthcoming.

http://tweetwood.com/MMFlint/tweet/347211867808227328

RIP Michael Hastings.

[KoKo]

63. And, look at these Rulings-A bit of a mixed bag with her. Wiki isn't always complete

so it's hard to know what's favorable to her mixed in that might not be the whole truth.
And given her long career there are probably more rulings and cases that haven't been put into WIKI which would give a broader view of her decision making.
-----------

Notable cases

In August 2001, Kollar-Kotelly was assigned the United States v. Microsoft anti-trust case, after Judge Thomas Penfield Jackson was removed from the case.

On July 14, 2004, barely two months after President Bush was forced to end NSA

domestic internet metadata collection by Attorney General John Ashcroft, Kollar-Kotelly issued a FISA court order allowing the NSA to resume unconstitutional[2] domestic internet metadata collection.[3]

Kollar-Kotelly denied a last-minute appeal by Saddam Hussein's legal team, stating that the United States has no right to interfere with the judicial processes of another nation's courts. In August 2007, she ordered the administration of George W. Bush to give its views regarding records requests by the American Civil Liberties Union on the National Security Agency's wiretapping program.[4]

On October 1, 2007, Kollar-Kotelly reversed George W. Bush on archive secrecy in a 38-page ruling, which said that the U.S. Archivist's reliance on the executive order to delay release of the papers of former presidents is "arbitrary, capricious, an abuse of discretion and not in accordance with law."[5] The National Security Archive at George Washington University alleged that the Bush order severely slowed or prevented the release of historic presidential papers.[6]

On June 16, 2008, Kollar-Kotelly ruled that the Office of Administration was not subject to the Freedom of Information Act, and therefore did not have to release records regarding missing White House e-mails. This was seen as a victory for the Bush Administration in terms of maintaining a tight grip on the flow of information about the executive branch.[7]

On September 20, 2008, Kollar-Kotelly issued a preliminary injunction ordering Vice President of the United States Dick Cheney and the National Archives to preserve all of Cheney's official records.[8]

On March 19, 2009, in response to a joint lawsuit brought by the Brady Campaign to Prevent Gun Violence, the National Parks Conservation Association and the Coalition of National Park Service Retirees, Kollar-Kotelly issued a preliminary injunction whereby she blocked a rule that would permit visitors to national parks to carry concealed weapons. The change of rule which she blocked had been enacted by the United States Department of the Interior after being supported by 51 members of Congress and passing an extended public comments period. She stated that her decision to block the change of rule was because there was no environmental analysis performed and therefore Congress "ignored (without sufficient explanation) substantial information in the administrative record concerning environmental impacts" of the rule.[9]

[KoKo]

58. That might explain, much. She's covering her OWN Butt!

Disgusting.

[WillyT]

35. Fuck...

& Rec !!!

[DirkGently]

36. That's already the way the administration is (mis)using the law.

Thomas Drake didn't "harm" the U.S. or "help" its "enemies." He exposed NSA law breaking after attempting to follow the chain of command. They kicked down his door with an assault team like he an Al Quaeda cell commander and charged him under the Espionage Act for "willfully retaining" a handful of memos that weren't even classified. This was in 2010, after Bush was gone.

The Obama administration is abusing the Espionage Act, in a historically unprecedented way, for the specific purpose of terrorizing whistleblowers who release information which simply might *embarass* the government.

It's completely out of bounds and unacceptable, and it is the precise flavor of wildly self-interested legal interpretation we all found so appalling during the Bush administration.

This needs to be fixed NOW, because it sure won't get better under the next Republican executive.

[Vanje]

84. "This needs to be fixed NOW, because it sure won't get better under the next Republican executive."

Such a good point.
Even the extremely loyal strong rigid partisans in our midst ought to understand this.......

But It seems they don't.

It seems they're frantically attempting to protect the legacy of one Democratic president.
Our nation's eventual future be damned.

[DirkGently]

85. I don't get it. It's a compliment to Obama that anyone

even imagines he might help us here.

We KNOW the Republicans will not.

The legacy will actually be much improved by better policy in this area. History is not going to be kind to Gitmo and drone strikes and NSA dragnets. These will be Obama's " * " in the Great Presidents discussions of the future.

[JDPriestly]

39. Since the executive branch uses the threat of prosecution under the Espionage Act to

silence discussion of important issues including discussion initiated by members of Congress, this decision is yet another nudge toward a dictatorship by the executive branch. Note that I do not mention the name Obama on purpose.

This is not about Obama or his specific presidency. This is about preserving the balance of powers. Right now, whether the president is Bush or Obama or Nixon or XYZ, the executive is using the Espionage Act to grab power, to silence member of the other branches of government.

Secret courts rendering secret decisions. Where is that permitted in the Constitution?

Trials are supposed to be public. Yes. Warrants are not. But we see people accused of violating the Espionage Act and certain other laws and tried in trials in which much of the evidence is sealed and kept secret. What happened to public trials?

U.S. Constitution

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

http://www.law.cornell.edu/constitution/sixth_amendment

What's with the secrecy?

It is not democratic. It shouldn't be allowed.

[snappyturtle]

40. There's so much wrong with this I don't know where to start.

I've written several scenarios and deleted them because the long and
the short of it is we're all screwed. Is FOIA next?

[bvar22]

41. The 1% are bolting the Doors,

and Pulling Up the Ladders in their WAR on the Working Class.

Dissent = TREASON

Challenging the Authority of the Government OF the 1% = TREASON

Telling the TRUTH about how "they" are spending OUR money = TREASON

Are we "there" yet?
Some ardent supporters of the Current Administration will say "NO",
but NOBODY can deny that we are getting closer every day.

[AnotherMcIntosh]

79. Rec n/t

[leftyohiolib]

43. more hope and change- well it is change

[shawn703]

44. This makes sense

Take the case of a "honeypot" trap of useless information that looks really important but which is all bogus. If someone who has intentions to leak information to a foreign power got a hold of this stuff, thought it looked good, and proceeded to dispense this information to these foreign powers of COURSE he should be brought up on charges. Why should it be thrown out just because it's bogus information? The agent had the intent to harm the United States with his actions, and just because he didn't cause any actual harm doesn't mean he should get off.

[Waiting For Everyman]

54. So you think intentions are crimes now?

[shawn703]

61. Where have you been?

Intent to harm has always been prosecuted. Should people who attempt to hire hitmen not be prosecuted because nobody was actually harmed?

[Waiting For Everyman]

62. Maybe

you won't mind then when the government hooks up some chips to your brain to see how many of your intentions are crimes.

Yay for the Thought Police!

Oh, here's a thought... maybe we would be better of going after ACTUAL crime. We do have some of that left unattended to.

Journalists reporting on government wrongdoing, and whistleblowers coming forward about the same, are not criminals. Without them, we institutionalize corruption. Good luck with that.

What's criminal, is the actions this government is taking lately.

[shawn703]

64. Thought police, what?

Come on now, you can do better than that. Hiring a hitman and leaking national security information require tangible actions, not simply thoughts. Try again.

[Waiting For Everyman]

71. I guess you haven't noticed the directional drift lately

by the surveillance state. Gee, the NSA abuses added to the repression of journalists and whistleblowers at the same time is just a coincidence.

[shawn703]

75. The OP was about whether disclosing secrets

Need to cause actual harm to be considered a crime, or if leaking with the intent to cause harm is enough to reach that level. In the case of Stephen Kim, I don't think that proving he even intended to cause harm to the US is a bar that the prosecution can overcome (though I haven't seen all evidence against him).

But I can envision a case, such as the agent falling in the honeypot I mentioned in my first post on this topic, where proving intent to harm should be a high enough bar to cross.

[bvar22]

86. In 2008,

"Potential Troublemakers" were arrested and jailed in Minneapolis the day before the Republican Convention.
NONE had committed an actual crime.

[Waiting For Everyman]

45. If it weren't for the Snowden case, would we even know about this now?

It doesn't say directly but I think this is one of the secret court opinions that was unsealed due to pressure over the Snowden case.

This one woman, as a former FISC judge and now on the DC Circuit, has had far too much involvement in the damage to our Constitution and our rights. She seems to think she is the Empress of the US. Very few people in the US know who the fuck she is, and most of those who do, like me, only heard of her and her secret sealed rulings within the last month... purely because of the publicity from the Snowden case.

I hope Congress is on this, because something drastic needs to be done immediately. Every journalist needs to be writing about this now. Without the 1st and 4th Amendments, our democracy is finished.

[KoKo]

52. Agree with what you say. And this is a really bad decision.

I don't get how she was allowed to overturn a former ruling in a case to allow the Govt. to now backtrack.

I read article at Emptywheel from link. I'm hoping there will be further coverage about this and that it can be challenged by one of the legal groups.

It's truly dreadful. And, agree that Snowden plus Manning trial verdict tomorrow probably caused her to do this. Also that her decision will shine a light on her that wouldn't be there without the Snowden/Manning issues bringing whistleblowers and freedom of the press issues into the spotlight.

[BlueCheese]

49. Goodness knows I can't stand the surveillance state.

However, just playing devil's advocate here-- is this sort of like convicting someone who plants a fake bomb somewhere while thinking that the bomb is real? If someone is revealing information that he or she believes will hurt the U.S., even if it doesn't, could that be a legitimate crime?

If I squint, I could see a justification for this interpretation. However, divining someone's mindset is difficult to impossible, and I doubt the government would have any qualms about the converse case-- namely, convicting someone who had good intentions but accidentally did something wrong.

[davidn3600]

50. Obama's war on whistleblowers is what he'll be remembered for

I've never seen an administration in American history that has such hatred and contempt for whistleblowers, and such disregard for truth and transparency. This is disgusting.

[muriel_volestrangler]

53. "to the advantage of a foreign nation" covers almost anything

it doesn't have to be a hostile nation - it could be an ally. It doesn't have to be something that is to the disadvantage of the USA for the other country to know. A hurricane forecast could be covered by this.

[msanthrope]

67. Well, yes. Jonathan Pollard is no less guilty because he gave material to an ally. nt

[myrna minx]

57. K&R n/t

[snappyturtle]

74. K&R nt

[Rex]

77. Sure why not.

The Rule of Law only applies to us little people. This countries government is quickly become a global joke.

[woo me with science]

78. kick

[woo me with science]

80. Kick. Good god.

[Safetykitten]

83. On a rocket sled to Hell...By the way, anyone going to Costco?

[kenny blankenship]

87. Requiring the Government to prove stuff is like UnAmerican and stuff.

The sled is picking up speed.

[woo me with science]

88. KICK

[Vanje]

89. Oh, I'll kick! nt

nt

[woo me with science]

105. +1

Kick.

[WillyT]

93. Kick !!!

[muriel_volestrangler]

97. 'Double standard' in White House leak inquiries?

From 2010:

In the first 12 pages of his new book, “Obama’s Wars,” famed journalist Bob Woodward reveals a wealth of eye-popping details from a highly classified briefing that Mike McConnell, then-director of National Intelligence, gave to President-elect Barack Obama just two days after the November 2008 election.

Among the disclosures: the code names of previously unknown National Security Agency programs, the existence of a clandestine paramilitary army run by the CIA in Afghanistan, and details of a secret Chinese cyberpenetration of Obama and John McCain campaign computers.
...
The issue: How can they credibly prosecute mid-level bureaucrats and junior military officers for leaking classified information to the press when so many high-level officials have dished far more sensitive secrets to Woodward?

That question is especially timely right now as the Pentagon braces for what it expects will be the publication of 500,000 Iraq war documents by WikiLeaks , the web site whose disclosures of classified documents have provoked howls of outrage from administration officials and criminal investigations. And it was posed directly in federal court last week by Abbe Lowell, the prominent Washington criminal defense lawyer, who is representing Stephen Jin-Woo Kim, a senior analyst at Lawrence Livermore National Laboratory and former State Department contractor. Kim was indicted in August on charges he leaked classified information about North Korea’s nuclear intentions to James Rosen, a correspondent for FOX News.

http://www.nbcnews.com/id/39693850/ns/us_news-security/

The answer, of course, is that it was Bob Fucking Woodward, who is untouchable, and Mike Fucking McConnell, vice chairman of Booz Allen Hamilton, who is also untouchable. They can leak whatever they want, if it helps sell Woodward's book.

[Progressive dog]

100. The ruling only applies in this case

and it is just the trial court.

The prosecution must still show that the defendant “reasonably believed” that the information “could be used to the injury of the United States or to the advantage of a foreign nation”

So prior to this ruling, he could have leaked secrets with the intent of harming the US, and got still gone free because of his incompetence in picking the secrets to leak.

[earthside]

101. bin Laden won the 'war on terror'. n/t

[L0oniX]

104. Government protecting itself against we the people finding out the truth.

It's not our government anymore.

[woo me with science]

106. Kick

[kpete]

107. MORE:

Today's ruling also opens up a new avenue for charging leakers and whistleblowers—section (a)(1) of the Computer Fraud and Abuse Act, which until now, has never led to a conviction. It’s was crafted in the 1990s by using some of the worst parts of the Espionage Act and adding the phrase “with a computer.”

This harsh conviction, coupled with a little noticed ruling unsealed this week in the Stephen Kim/Fox News leak case, will make it much easier for the government to charge leakers under the Espionage Act in the future. It's just the latest sign that the law has been morphed into a version of the UK’s Official Secrets Act—something that should be considered unconstitutional in the United States.

These charges were unnecessary from the start, given that Manning had already pleaded guilty to ten lesser counts that would land him up to twenty years in jail no matter the outcome of the trial. With this verdict, the government is not seeking justice, it's seeking to intimidate and scare any future whistleblowers from coming forward with potentially vital information that the public should know.

There is a sliver of hope for Manning – the sentencing hearing begins tomorrow and there are no minimum sentences for the crimes he has been convicted of. The defense will also now be able to admit evidence as to his intent and the lack of damage the disclosures cost.


https://pressfreedomfoundation.org/blog/2013/07/bradley-manning-espionage-act-conviction-blow-both-whistleblowers-and-journalists

[woo me with science]

108. Please make this an OP.

Whistleblowers are supposed to be protected in this country.

Obama has Prosecuted More Whistleblowers than All Other Presidents COMBINED
http://www.washingtonsblog.com/2012/04/obama-has-prosecuted-more-whistleblowers-than-all-other-presidents-combined.html

Obama administration wages legal battle against the whistleblower and union protections of hundreds of thousands of federal employees
http://www.democraticunderground.com/10022672473

A broader, outrageous interpretation of the Espionage Act.
http://www.democraticunderground.com/10023365713

The promises were lies. They are dismantling the Constitution and eliminating the avenues for exposing and addressing government corruption and abuse.

Obama Promises, Including Whistleblower Protections, Disappear From Website
http://www.democraticunderground.com/1014549454
http://www.democraticunderground.com/10023344766

[kpete]

109. I care, you care, a few more out there, I have been screaming at the top of my.....

Poor guy, not the star that Assange or Snowden are
but according to Jeremy Scahill:

It altered history. It was like an earthquake.

What Is in Bradley Manning’s Leaks, Anyway?

"It would be impossible to quantify the significance of Wikileaks not just to my or your work but to the world's understanding of US covert and overt operations. It was the most significant document dump in modern history. It altered history. It was like an earthquake. It was the most real confrontation of American empire certainly since the Pentagon Papers but it may prove to be more significant. The idea that you had a democratisation of classified documents and access to them, you can go in and search any country and figure out what the US relationship is with various political forces or factions. I dug deep into the relationship between the US and Somalian warlords. I found individuals who were on the CIA payroll because of Wikileaks and went and found them and got them on record. I would never have known that these people even existed but for Wikileaks."

http://www.thenation.com/blog/174703/what-bradley-mannings-leaks-anyway#axzz2aaA6LpSS

[delrem]

112. Bradley manning looked *very* pale, and distressed,

while putting on a brave face.

Thank you, Bradley Manning.
You did us the best service.

[snappyturtle]

111. Kick! nt