Exclusive interview with PayPal 14 lawyer Omar Figueroa

“corporate America uses the U.S. Attorney’s Office and the Federal Bureau of Investigation as their private security firm”

Vincent Kershaw's computer equipment, seized and finally returned by the FBI.
Vincent Kershaw’s computer equipment, seized and finally returned by the FBI.

In 2010, thousands of people launched distributed denial of service attacks against the websites of PayPal and other financial companies in retaliation for those companies’ extra legal blockade of WikiLeaks upon the publication of war logs and diplomatic cables revealed by Chelsea Manning. PayPal said that its website was never actually down, but in court, alleged more than $5 million in damages. Fourteen people were arrested for the action and charged under the Computer Fraud and Abuse Act. Thirteen of those men and women pled guilty. Eleven of those took felonies on their records, avoiding jail time, but owing a collective total of about $80,000 in restitution to PayPal. The other two served short jail stints instead of having felonies on their records. On October 29, 2014, with the judge in their case retiring, each defendant with a felony had that count dismissed. They paid what they could at the time and each worked out a time frame to pay the remainder, with most owning about $100 per month. One of those activists is Vincent Kershaw. His lawyer is Omar Figueroa, and now that sentencing is over, Kershaw and his legal representative are more free to discuss the case.

Nathan Fuller: So, Omar, thanks for talking to me today and if you could start off just by telling me, who is Vincent Kershaw?

Omar Figueroa: Vincent Kershaw is an individual who lives in Colorado and he was an activist was indicted by the Federal Government for allegedly participating in this distributed denial of service attack.

Why is this case — why are the PayPal 14 and their case important?

This case is important because it sheds light on the abuse of corporate power and how corporate America uses the U.S. Attorney’s Office and the Federal Bureau of Investigation as their private security firm.

We know that PayPal is involved, but can you tell us how PayPal and then eBay were involved in this case?

Yes, PayPal was involved. What triggered all this was that PayPal stopped accepting donations made to WikiLeaks, around the time of the Julian Assange controversy and they extra-legally decided to stop accepting payments and these were gonna be donations for what I think is a good cause. First Amendment related activities to disseminate information and to keep secrets from being kept from the American people. Basically, an attempt to shed light on government action. And PayPal was part of the coverup.

What role exactly did they play against the defendants in this case?

PayPal called itself the victim in court, and so they’re the ones who were telling the U.S. attorneys what would be an acceptable outcome for them and what the amounted restitution was. Their role in the litigation was not as active as it would have been had the case gone to trial. So mostly they played a behind-the-scenes role. They were considered the victim.

We saw via Alexa O’Brien’s Daily Beast article that they alleged more than $5 million in damages, but we saw statements from PayPal representatives saying that their website was never actually down. Can you talk about what kind of damages that they are alleging, or was that all behind the scenes?

That was mostly behind the scenes, but they were alleging an impairment to their system, and it’s really funny, because the reports that they filed with the Securities and Exchange Commission claimed that there had been no actual damages and that would have come out at trial. We would have impeached PayPal with their own SEC filings had the case proceeded to trial. I think that was partly why we were given such an unprecedented deal. To correct what you had said about felony on the record — the defendants, the eleven defendants who entered pleas of guilty to a felony charge were never sentenced on those pleas. They were later allowed to withdraw their pleas. Technically, they don’t have any felonies on their record and never did because there cannot be a felony conviction until sentencing. So it is a two-step process. Step 1: Enter a plea. Step 2: Get sentenced. The way the deal was structured, they only went forward with Step 1, they entered a felony plea. They were basically given a time-out. After they completed their time-out, the felony plea was dismissed, and all that remains on the record is a misdemeanor conviction.

Thank you for clearing that up. eBay, as I understand it, is the parent company of PayPal. Were they playing any kind of behind-the-scenes role as well as you understood it?

Not as active as PayPal. As a parent company I think they had corporate counsel but that was probably working with PayPal, but they did not have a prominent role in the litigation.

OK, because we know that Pierre Omidyar, who is on the board of PayPal, made comments later on. He was calling for leniency for the PayPal 14, but the way that he phrased it, he still said that the PayPal 14 had excessive impact and he still kind of accepted the logic of the Computer Fraud and Abuse Act. Do you have any comments on his comments?

Ah, yes. I think he should step up and pay the restitution for the PayPal 14 if he’s truly honest that this case was over-prosecuted. I think if he can put his money where his mouth is, we invite him to do so.

I spoke to another defendant, Mercedes. She was talking about the enormous restrictions placed on the defendants. I was wondering if you could go into detail — some of the restrictions placed on the defendants before sentencing.

Oh, yes. They have numerous conditions of pre-trial release, such as checking in with pre-trial services. It’s basically like being on probation. Many people think that in America you are innocent unless proven guilty, but in the Federal system you are put on probation from day 1. It’s called pre-trial supervision and it is burdensome and onerous as being on probation. It is almost like you are put on probation before you are ever convicted. So the conditions for my client, Vincent Kershaw, also included a ban on being on IRC. He could not be on any IRC activity at all. He was also banned from Twitter. We successfully challenged the ban on IRC — I’m sorry, we successfully challenged the ban on Twitter … but the court did not lift the ban on IRC. I think this is the first case where somebody’s right to tweet was recognized by the courts.

Mercedes was also talking about how these restrictions kind of broke up their social circle. I mean, before these restrictions, this group was their friend circle and so they were not allowed to talk to one another. That really broke them down. Did Vincent suffer from that as well?

Yes. All the defendants had a restriction that they would not communicate with each other unless in the presence of counsel. Basically, it eliminated any relationships that they had if they can’t communicate. Communication is key to maintaining social relationships. Basically, when they are forbidden from talking to their friends it’s going to have a detrimental impact. It’s almost like being grounded by Big Brother.

Has Vincent talked about how happy he is to have that freedom since the sentencing?

Yeah, Vincent was very happy to be able to communicate and to renew those relationships that had been idle. It’s very liberating. I think there is something very oppressive about feeling that the government could be monitoring you. They have the duty, the right to monitor you, and they don’t want you to communicate with your friends. It just feels extremely intrusive. We did our best to fight against that, but that is what the Federal system has come down to. When people are charged in a Federal crime, usually they are forbidden from communicating with their co-defendants.

So at least he does have those restrictions removed. But he does have some money owed left. Is that correct? How much money does he still owe?

He still owes $5600.

And is that on a payment plan?

Yes. The payment plan is going to be $100 a month for the duration of probation which is going to be about twelve months. We anticipate that if he doesn’t pay that off before the probation expires, that the restitution amount, $5600 or whatever is left, will be converted into a civil judgement. That civil judgement cannot be discharged in bankruptcy. So he has to pay it at one point in his life. It is very important for him to try to get it paid off as soon as possible so that he can be a free person again.

I was speaking also to Mercedes and it sounded like there was some surveillance, at least financial surveillance as the government was monitoring the defendants to make sure that they were at least looking for work to attempt to pay restitution. Do you know if that was the case and, if so, is that still the case?

My understanding is that right now the only condition is that they pay but not like they have to get a job or they have to do something in particular. I can only speak to Vincent Kershaw. He doesn’t have any conditions other than make his payments. Once he’s done making his payments, probation will be terminated. That’s why it’s so important that the funds be raised as soon as possible so that these people who have been under very restrictive conditions for four years can be set free as soon as possible. They’ve served their time and then some. They’ve already done four years probation.

Where can people who support the PayPal 14 — can people donate to them?

Absolutely. I think there is a PayPal 14 website and there is also a foundation in Germany that is helping with the fundraising. As well, the defendants are embarking on a fundraising project that is going to involve them auctioning off the computer equipment that they obtained from the FBI, that they got back from the FBI.

They’ve already all received that equipment back?

I can speak for Vincent Kershaw. He received his equipment back, yes.

Vincent Kershaw's computer equipment, returned by the FBI.
Vincent Kershaw’s computer equipment.

So that auction will happen soon, I hope.

Yes. The auction will probably be started on eBay, the parent company of PayPal, ironically enough.

We were also discussing about the defendants’ collective options as far as saving up money to liberate one of them or whether they want to liberate each of them individually. Do you know if they have come together to discuss that or whether that is something they are going to do in the future?

They are going to discuss that in the future. For now the default is going to be that nobody is free until they are all free. But they are talking about maybe establishing a lottery so that those who can be off probation can get off probation and they can still help the rest with the fundraising.

That would be great. Is there anything else you want to add, Omar?

Yes. I think that the point of this case — it goes back to WikiLeaks, it’s about transparency in government. It’s about people engaging in nonviolent civil disobedience. This case, the distributed denial of service attack, I see it not as breaking and entering or as a physical trespass. It’s more akin to a game of Ding, Dong, Ditch, where somebody is ringing the doorbell. The response by the federal government was disproportionate. It just seems to me that it was a tremendous waste of taxpayer dollars to go after nonviolent, good-intentioned people who are standing up for what is right.

 As far as I understood it, thousands of people took part in that action and only 14-

Absolutely, it was really arbitrary who was selected by the government. The people who operated the botnets and who were responsible for the most pings, those people were never arrested, were never brought before the court. They got off scot-free. They just went after the little fish. The little fish they were able to catch but the big fish got away.

These 14 were seemingly selected at random?

It seems like it to us. We couldn’t really find any — it’s just whoever they are able to catch.

Seemingly disproportionately prosecuted as a potential deterrent is you’re understanding?

Oh, yes. They wanted to make a big example out of them.

Do you think they succeeded in that or do you find there is more support for the PayPal 14 and more people are inspired to support them?

I think they did not succeed. I think there is more support. If anything, this case has set a precedent for future activists because they are going to want the same deal that the PayPal 14 got, which is a time-out with a misdemeanor at the end and no felony convictions. I think even that is draconian because the Computer Fraud and Abuse Act used to require malice. When the government was not able to get convictions because they couldn’t prove malice, they dropped the malice requirements. Initially it was required to be malicious. I would argue that the PayPal 14 were not malicious. If anything, they were acting out of idealism. It was not a malicious action, it was an idealistic act of civil disobedience.

That law was written in 1986, I believe. In the last few years it has been really used to crack down on civil disobedience and political action, like Jeremy Hammond, Chelsea Manning and others.

Absolutely. It’s been abused. If that law had the malice requirement like it did when it was first passed by the Congress, they probably could not go after Chelsea Manning or Jeremy Hammond without proving that they were malicious.

Do you believe there is any option that we have to repeal it, to get rid of it, or to end its abuse?

Yes, I think the option that we have at this point, with Congressional gridlock, it’s going to be difficult to repeal. But prosecutors have so much discretion that the law doesn’t need to be repealed, it just needs to be applied in a judicious and wise fashion. And go after the foreign intelligence services that are stealing industrial secrets from American companies and not go after American activists who are engaged in civil disobedience because they want open government, and they are advocating for transparency.

Alright. Omar Figueroa, legal representative for Vincent Kersaw, member of the PayPal 14, thank you very much for talking with me today.

Thank you, Nathan. It was a pleasure.

The Paper of No Records (updated with NYT response)

Update below

In its bold ‘Response to President Xi Jinping‘ of China, the New York Times editorial board takes a stand:

The Times has no intention of altering its coverage to meet the demands of any government — be it that [sic] of China, the United States or any other nation. Nor would any credible news organization. The Times has a long history of taking on the American government, from the publication of the Pentagon Papers to investigations of secret government eavesdropping.

But despite the Times‘ claims to the contrary, this, like most rules, must come with an American Exception. This is a brazen whitewashing of the very type of stories the New York Times is known for withholding to meet the demands of the United States government: secret government eavesdropping. As has been well documented, the Times sat on James Risen’s and Eric Lichtblau’s revelation that the Bush administration was illegally wiretapping American citizens without warrants for more than a year, publishing ‘Bush Lets U.S. Spy On Callers Without Courts’ on December 16, 2005. Continue reading “The Paper of No Records (updated with NYT response)”

The PayPal 14 case has effectively ended, but they still need your help (updated)

They’ll each pay what restitution money they have and will be placed on payment plans for the remainder

Update, 11/3/14: Journalist Douglas Lucas was in the San Jose, CA, courtroom last week, and he reports that each of the defendants with felonies on their records had those dismissed, and each worked out a timeframe to pay the remainder of their owed restitution.

Though many declined, each defendant was given the opportunity to make a statement in court. Ethan Miles, who previously chose jail time over having a felony on his record, said in part:

It is because of my desire for transparency that I participated in the Internet activity that brings me here today. I believe that for a healthy democracy to exist, the public must be informed.

The full report at the Cryptosphere contains photos, more commentary on the day’s events, and more information about each defendant.

Original Story

They’ll each pay what restitution money they have and will be placed on payment plans for the remainder

The PayPal 14 are activists charged under the Computer Fraud and Abuse Act for launching Distributed Denial of Service attacks against the websites of PayPal and other financial companies in retaliation for those companies’ extra-legal blockade of WikiLeaks upon the publication of secret documents exposing US atrocities, revealed by US Army private Chelsea Manning. Back in 2010, a PayPal representative said that on November 27, 2010, the US State Department sent the online commerce service a letter informing them that WikiLeaks was engaging in “illegal” activities, and PayPal consequently blocked funds to the publisher. Believing this was clear censorship, the PayPal 14 struck back. Continue reading “The PayPal 14 case has effectively ended, but they still need your help (updated)”

“Why can’t you be reasonable?” asks judge in the case to end secrecy in Bradley Manning’s trial

Judges questioned why the government forced the issue to come to court at all, instead of simply making the documents public.

[This post was first published at BradleyManning.org — view it there.]

The CCR argued its case at the Court of Appeals for the Armed Forces today for transparency in Bradley Manning’s court-martial trial. Judges questioned why the government forced the issue to come to court at all, instead of simply making the documents public.

By Nathan Fuller. October 10, 2012.

During oral arguments in the Center for Constitutional Rights’ lawsuit against the government seeking public access to basic court documents in Bradley Manning’s court-martial trial, judges for the Court of Appeals of the Armed Forces demanded the government explain why it wouldn’t simply provide these documents in the first place.

When Army lawyer Capt. Chad Fisher said that the court wasn’t constitutionally required to provide public access to documents like prosecution briefs, transcripts, and rulings, Judge Margaret Ryan interrupted him to ask what she called a “common sense” question.

“Why can’t you just give it to them? Instead of making this a constitutional case, why can’t you just be reasonable?”

Fisher was unable to directly answer the question. Instead, he gave an array of responses that circumvented the basic issue: he repeated his belief that the court wasn’t obliged to make these records public, he said the fact that the public could attend the hearings meant they were “open,” he complained that the defense wasn’t asking the proper authority, and he reiterated the government’s position that the availability of FOIA provided sufficient public and press access.

The five judges repeatedly questioned and challenged each of Fisher’s points, particularly the idea that FOIA requests, to which the government frequently takes weeks, months, or even years to respond, provided sufficient and contemporaneous access, especially considering the fact that FOIA requests in this case have already been denied. They also pushed back on Fisher’s claim that “Nothing has been withheld” from the public and the press, based on the idea that attending the hearings amounts to fully accessing the proceedings.

“How is oral argument sufficient if you can’t read the briefs?” one judge asked.

“It’s not as if they’re speaking a foreign language,” Fisher responded.

But as journalists from the 30 major media outlets who submitted a supportive brief in this case explained, the media (and therefore the public) needs these documents to adequately cover the case:

“Journalists rely heavily on court documents to gain and provide to readers the background of and context surrounding a legal controversy — awareness and understanding of which is often necessary to accurately report on the dispute. Prior access to the materials also allows reporters, the overwhelming majority of whom have no legal background or education, to process the oftentimes complex legal theories at their own pace, or to interview a legal expert who could explain the issues, so they are better equipped to understand what is transpiring in a proceeding they attend.”

Shayana Kadidal, the CCR lawyer arguing in court today, similarly contended earlier this year that providing openness-in-name-only effectively “choked off” coverage of Manning’s hearings.

But the judges, not seemingly satisfied with Fisher’s responses, kept returning to the more elemental point that the government could avoid this litigation and a potential ruling that would affect courts-martial to come by simply turning over the documents requested. The court already has a process in place to redact documents, the judges noted, and parties settle extrajudicial matters with a compromise out of court all the time, so it seems perfectly feasible for the government to comply with the CCR’s reasonable request for access to the documents.

In the midst of this questioning, Fisher did concede what the CCR has long observed: that Guantanamo tribunals – hardly beacons of transparency – were less secretive than Bradley Manning’s court-martial, because the public could access filed briefs and transcripts to those proceedings.

The CCR’s Kadidal fielded a similar though not quite as lengthy barrage of questioning from the appeals court judges. The first issue they raised was whether this court even has jurisdiction to make a ruling on this case, as their jurisdiction has been narrowly limited and it isn’t clear that they have standing to make a ruling that affects the press and public alike. Kadidal responded that the government hadn’t raised this issue in their replies, and so he would need an additional 10 days to file a supplement that addresses the court’s jurisdiction.

Judge Ryan also wanted to know whether there was precedent for this court to compel the production of documents that didn’t yet exist. She was referring to the CCR’s request for transcripts of RCM 802 conferences, the private telephonic meetings Judge Denise Lind holds between Ft. Meade hearings with both the defense and the prosecution. She also wanted Kadidal to account for how exactly the documents would hypothetically be produced: who would transcribe the hearings, or who would pay a stenographer?

Kadidal responded that an audio file would be acceptable, but on the issue more generally, he said he believes the court should make a First Amendment ruling granting the press the right to these documents and let lower courts adjudicate the logistics. Judges replied that it was unclear that the First Amendment affords contemporaneous access to these documents: in other words, it might be wholly constitutional for the court to provide these documents after the fact.

Kadidal will submit his jurisdictional supplement in 10 days, and the government will submit a reply less than a week later. It’s unclear when or if this court will issue a ruling, or when exactly the parties might return to court. We’ll update our coverage of this case as it unfolds.

Detention and Deception Revisited

Exactly four months ago, the United States marked the 10-year anniversary of the September 11th attacks – a day mixed with somber reflection, raging jingoism, and politicized commentary. Today we mark the 10-year anniversary of the opening of the Guantánamo Bay detention facility – a day of national shame. This is a prison rife with torture, trumped up charges, and hidden abuse. Guantánamo symbolizes the worst of America’s practices in the War on Terror: secretly caging alleged enemies miles away from the rule of law, a terrorizing warning to those who would question our foreign policy. 

The ACLU has produced this excellent infographic (at right, click to enlarge) with some vital facts about the still-open prison. I also want to direct you to this New York Times Op-Ed, by Lakhdar Boumediene, “My Guantánamo Nightmare,” and Marcy Wheeler’s “This Gitmo Anniversary Needs to Be About Bagram, Too.”

Exactly eight months ago, I wrote a report on WikiLeaks’ ‘Guantánamo Files,’ what they revealed about the prison, and what the prison revealed about the United States. The whole paper, “Detention & Deception: The Guantánamo Files & American Human Rights Hypocrisy,” is here, but it’s rather long, so I’m re-printing some excerpts below:

On Obama’s Broken Promise

“The first step to reclaiming America’s standing in the world has to be closing” the Guantánamo Bay detention facility, President Obama declared in a 2008 campaign pamphlet, before promising to do just that. International leaders and an official United Nations report have called on the United States to close the prison, citing human rights abuses. Scores of GTMO detainees have been tortured, few made it to military tribunals, and almost none were awarded a civilian trial, let alone compensation after their eventual release.

Since its foundation in 2002, the Cuban-based detention camp has been an emblem of the War on Terror’s worst erosions of civil liberties, an icon of America’s moral degradation, and a crucial talking point for critics of American foreign policy around the world. So the international community generally lauded Obama’s election, and his promise to close the site, excited for a new era of justice and moral awakening. Three years later, however, the notorious prison is still open, still caging nearly 200 people who may never see a trial, and still a symbol of America’s disastrous disregard for human rights under the endless, sprawling War on Terror.

On Prisoners and Justification

The U.S. military has caged Arabs of all ages. The youngest is Naqib Ullah, a 14-year-old boy with Tuberculosis, who was kidnapped, raped, and held in a camp by 11 Afghani men. Then the U.S. raided the camp and detained Naqib for eight months, interrogating him about his captors but never about any potential risk he might pose. The oldest is 89-year-old Mohammad Sadiq, who was suffering dementia, major depression, and osteoarthritis while captive for nearly a year.

Guantánamo has held several others with mental disabilities, such as Abdul Houari, who has psychosis, slowed mobile functionality, and a blind right eye, and yet was deemed with the explicit coercion of the Criminal Investigative Task Force to pose a “medium risk” threat. Or Mishal Alhabiri a suicidal, mentally impaired detainee of “low intelligence value” who posed a “low risk,” but who was never given a trial despite his detention.

The reasoning provided for detaining many prisoners is illogical, contradictory, or merely that of a realist military tending to national interests instead of basic rights. For example, Sheikh Salman Al Khalifa, a member of the Bahraini royal family, was detained specifically to provide information on a select few “personalities” and alleged “Taliban safehouses,” but was then deemed himself a potential “threat to the US, its interests and allies.”

For others, the U.S. didn’t bother with a pretense of a real, potential threat, and instead decided that extremely tangential information justified indefinite imprisonment without trial. Sami al-Hajj, an al-Jazeera cameraman, was locked up for six years, solely so the U.S. could interrogate him about the news network. According to human-rights lawyer Clive Smith, the U.S. was “only interested in turning him into an informant against al-Jazeera.” Al-Hajj went on a hunger strike in protest of his treatment, claiming he was being denied vital medication, and demanding better conditions prison-wide. Hundreds more have fasted in protest similarly.

Equally baffling is the fact that the U.S. considered the basic, cheap, and globally available Casio F91W wristwatch to be a ‘sign of al-Qaeda,’ and frequently listed it as a “suspicious item,” purportedly because an al-Qaeda training camp purportedly distributed that model to several students. At least 50 GTMO detainees wear the watch, though no direct link between that model and a terror threat has been made.

Kafka would marvel at what some of the documents reveal: merely having information on other detainees, i.e. cooperating and informing on who could be threatening, was officially considered a suspicious sign that warranted further detention. There is no way out in a system with rules like that.

On Alleged Efforts to Close GTMO

Obama Administration officials complain that the GTMO debate “became suffused with fear — fear that transferring detainees to American soil would create a genuine security threat, fear that closing Guantánamo would be electoral suicide.” Some congressional Democrats, they said, even pleaded with the Administration to back off of the issue. Congress, in turn, put the blame back in Obama’s hands – an aide said “vulnerable senators weren’t going out on a limb…when the White House, with the most to lose, wasn’t even twisting arms.”

Others asked to speak on the matter claimed even more fundamental obstacles, as a Republican staffer said those seeking to close GTMO “could never figure out…who was in charge” of the effort, while another White House counsel Gregory Craig said “no one was coordinating.” More officials observed repeated backtracking from both Congress and the Administration.

These, to be sure, do not sound like people genuinely interested in closing the facility. How could the lawmakers of the world’s greatest superpower appear so feeble and uninterested to solve such a glaring human rights debacle? The idea of “electoral suicide” likely points in the right direction. More and more often, presidents and congressmen choose to fight not for what they feel is righteous and in their citizens’ interest, but instead for what will get them reelected. Human rights tend to lose these battles frequently in America, as the lack of a real stand to close Guantánamo demonstrates all too clearly.

On the U.S.’s Record on Human Rights

Despite the well-documented abuses of the Guantánamo Bay prison, not to mention hundreds more human rights problems, the U.S. frequently holds itself out as both an arbiter of human-rights morality and an exemplary model for lawful practices, as part of a larger theme of American Exceptionalism. The State Department annually publishes a thorough report on human rights abuses on every single country – except the U.S. This year, the Obama Administration made a special point to criticize China on that country’s various human rights deficiencies. Assistant Secretary of State Michael Posner declared the U.S. has “seen a serious backsliding on human rights” in China, specifically disparaging China’s detention practices, saying, “We have been and are very concerned over recent months by reports that dozens of people, including public interest lawyers, writers, artists like Ai Weiwei, and others, have been arrested, detained, or in some cases, disappeared, with no regard to legal measures.” While some would argue there is a difference between imprisoning ones own citizens and detaining prisoners of war abroad, there is an obvious irony in Posner’s remarks.

On Torture and Hypocrisy

Throughout the Guantánamo Files, though, the word torture is never used. We know that some detainees were waterboarded and that too many others were subjected to physical and psychological torture, yet officials who wrote the files repeatedly referred to “interrogation” and “questioning.” Publicly, as well, U.S. diplomats are careful to discuss “enhanced interrogation techniques,” or other deceptive phrases, when referring to their own country’s tactics, no matter how often they accuse another nation of torture.

This type of hypocrisy emphasizes the U.S. as a ‘realist’ country, or one that bases nearly all decisions on its own national interests, and one whose interests routinely trump any human rights concerns. Unfortunately, American policies at the Guantánamo Bay prison camp emblematize this dynamic all too well. There is insufficient evidence to prosecute most of the remaining prisoners, and it’s too difficult to transport them safely and wisely elsewhere, so the site remains open. After years of intense international and domestic criticism, officials have cleaned up GTMO practices, no longer torturing detainees and abiding by somewhat higher standards. But this only came after heavy pressure, and when it became the United States’ interest to improve their international standing on human rights. Yet nearly 200 still sit caged without charge or trial, potentially for the rest of their lives, and criticism has largely died down, at least before WikiLeaks released the Guantánamo Files. Without significant pressure, it’s simply not in America’s national interest to close the prison down. For the United States, human rights only seem to matter when respecting them suits other interests, and when doing so fits the Exceptional narrative that we have written.

The Scale of American Overclassification

[This piece was first posted here, for the Bradley Manning Support Network.]

In his closing statement two weeks ago, PFC Bradley Manning’s defense attorney David Coombs said of the information released, that it is all out in the public, and yet it hasn’t caused any harm. “If anything, it’s helped,” he said. Coombs called the government’s warning about the impact of the releases a “Chicken Little response” — a response the media has picked up on. He said officials were saying the “sky is falling, the sky is falling” over and over. But, he said, “The sky has not fallen, is not falling, and will not fall.”

He alludes to an inconvenient truth that is not well hidden, but also not well understood by many reporters seeking to summarize the WikiLeaks’ story. The sky is not falling because most of the documents WikiLeaks released should not have been classified in the first place. The U.S.’s classification system is poorly regulated, to say the least, as hundreds of thousands of documents are unnecessarily classified every year.

President Obama’s Executive Order 13526 clearly states:

In no case shall information be classified… in order to: conceal violations of law, inefficiency, or administrative error; prevent embarrassment to a person, organization, or agency… or prevent or delay the release of information that does not require protection in the interest of the national security.


U.S. government classification over time (graph by the Information Security Oversight Office). Click for larger image.

Unfortunately, the government is not following its own laws. Using these standards to assess actual classification practices, an internal government review by the Information Security Oversight Office (ISOO) found that, in 2009, 35% of the classified documents examined did not meet the classification criteria.

The problem with poor oversight of government classification has been growing for decades – at least since Nixon’s administration prosecuted Daniel Ellsberg for leaking the Pentagon Papers – but since 2001 it has exploded. To understand how this happens, it helps to know some specifics about our classification authority structure and process.

Currently, more than 4.2 million people have classification clearance, while 1 million hold Top Secret clearance. But even though there are literally millions of low-level government employees and contractors with the authority to classify documents, most of these classification decisions will never be reviewed by a second party.

Furthermore, so many documents are classified in part due to what the Brennan Center for Justice calls the “skewed incentive structure” of the system, wherein officials face no repercussions for classifying documents that don’t meet the criteria, but there are severe consequences for failing to keep sensitive information secret. Whenever remotely unsure, officials err on the side of caution.

One of the ancillary effects of WikiLeaks releasing thousands of diplomatic cables is that it calls more public attention to just how increasingly massive and harmful America’s culture of overclassification really is.

Bradley Manning’s defense requested dozens of witnesses who the military investigation officer chose not to compel to testify at the hearing. Some of the most important witnesses were being called upon to testify directly to this problem of overclassification.

For example, Coombs asked that retired Defense Secretary Robert M. Gates testify

that the Afghanistan and Iraq SIGACT releases did not reveal any sensitive intelligence sources or methods. He will also testify that the Department of Defense could not point to anyone in Afghanistan or Iraq harmed due to the documents released by Wikileaks. He will testify that the Afghanistan and Iraq SIGACTs are simply ground-level field reports that document dated activities which do not disclose sensitive information or our sources and methods. [He] will also testify that the initial public descriptions of the harm to foreign policy due to the publication of diplomatic cables were ‘fairly significantly overwrought.’

Government officials are well aware of the problems with staff being able to improperly classify documents without repercussions. Some seek to address it, and some use it to their advantage. Criticisms of the U.S. government’s classification system have come from high-ranking government authorities on a recurring basis for decades. A number of congressionally commissioned reviews have requested that the problem be addressed, and even former Bush Administration CIA Director Porter Goss admitted, “We overclassify very badly.”

President Obama directed a 2009 memo to address overclassification, but the problem has increased under his presidency. According to the ACLU‘s ‘Secrecy Report’ issued this year (PDF), the U.S. classified 76,795,945 documents in 2010, the most in history and eight times as many as were classified in 2001. It’s also 300 times more than were released in Cablegate, which was the largest leak of documents in U.S. history at 251,287. Classifying that many documents is incredibly expensive. According to the Information Security Oversight Office, the government spent more than $10 billion on classification in 2010 alone (PDF).

Overclassification on this gigantic scale has real ramifications for policy. As the Brennan Center argues, overclassification “jeopardizes national security,” “prevents federal agencies from sharing information internally, “contributed to intelligence gaps in the months before the September 11, 2001, attacks,” and “corrodes democratic government” by hiding valuable information from national discussions.

WikiLeaks reveals exactly how this extensive secrecy shapes foreign policy. Glenn Greenwald highlighted reports suggesting that WikiLeaks’ release of a diplomatic cable chronicling U.S. soldiers’ summarily executing several Iraqi civilians, including small children, strained relations between the United States and Iraq and encouraging Iraqi leaders to reject the Obama administration’s deal to keep U.S. troops after the 2011 deadline. As Greenwald says, “whoever leaked that cable cast light on a heinous American war crime and… thus helped end this stage of the Iraq war.”

Several governmental and independent figures have recommended remedies for this system, including requiring officials to justify classification, auditing classifiers’ records, and cash prizes for spotlighting documents that are unnecessarily classified. But as Jennifer Lynch and Trevor Timm of the Electronic Frontier Foundation argue, none of these would be necessary if the Obama administration followed through on his 2009 transparency proposals. The issue is gradually gaining traction in Congress, though. In a December, 2010, hearing on WikiLeaks, Rep. John Conyers pushed back against calls to prosecute WikiLeaks founder Julian Assange, citing overreach “by the Executive Branch when it comes to classifying documents.”


From President Obama’s Memorandum on Transparency and Open Government, 1/21/09

If the Obama Administration wants to show it’s serious about addressing overclassification and to regain some credibility regarding its ability to protect whistle-blowers, it needs to acknowledge David Coombs’ closing argument explaining why PFC Manning is being unfairly and arbitrarily overcharged.

In his closing words, Coombs implored the military to “give the government a reality check,” and to live up to its own professed standards of openness and accountability.

Let’s tell them, he said, quoting former Supreme Court Justice Lois Brandeis’ famous call for transparency, that “sunlight is the best disinfectant.”

“More Questions than Answers” at the Bradley Manning Hearing

Here are the notes I took on the final day of Bradley Manning’s pre-trial hearing. The last day was brief – the defense and prosecution each gave their closing statements, and we were out of the courtroom in an hour – but revealing. Each side suggested the type of arguments they planned to make if and when the case goes to court-martial, with the prosecution meticulously reviewing each item of the alleged leak, and the defense outlining the military’s incompetence in handling Manning, and requesting a far reduced set of charges that would reflect a more honest understanding of what has been released. David Coombs, Manning’s chief legal counsel, opened his statement appropriately, addressing the Investigating Officer directly: “You are in a unique position to give the United States a reality check.”

Daniel Ellsberg answers questions // photo by Nathan Fuller

After the hearing adjourned, I accompanied Dan Ellsberg and Jeff Paterson to a brief press conference. While I was taking pictures, a pair of civilian lawyers who’d attended the hearing approached me with a barrage of questions about the proceedings – “Where are the warrants for these searches of files at Manning’s aunt’s house? … Where is the motion to suppress that evidence? … Are they even going to have to verify these alleged chat logs?” With limited information and no access to Coombs directly, I pointed the lawyers to Paterson, a Bradley Manning Support Network director and spokesperson, but he had few answers too.

One lawyer turned and bitterly mumbled “kangaroo court.” The other looked exasperated. “More questions than answers,” she said.

My only answer to those questions now is that I expect them to get more attention in the full trial. Maybe they should have been addressed at the hearing, but Coombs clearly has a strategy for working with what he’s got – which, in light of his closing argument, may involve a plea deal.

But the lawyers’ inquiries encouraged me to challenge plenty more dubious aspects of the hearing.

First, the prosecution’s argument that Manning “knew our enemies use the Internet,” knew they could access WikiLeaks, and leaked online sounds incredibly broad. This claim allows for anyone to be considered an enemy of the United States, and so leaking anything online is “indirectly” aiding our adversaries no matter where it is. As EFF writer Trevor Timm notes time and time again, though, while Manning sits in prison or in trial for these releases, ‘anonymous’ U.S. officials routinely leak classified information to the front page of the Washington Post or the New York Times, as is politically convenient. As Timm and Glenn Greenwald frequently remind us, Bob Woodward has made a living off of publishing secret information via anonymous sources all the time. All of that information is, anonymously sourced, on the Internet. So the claim that leaking classified material online has anything to do with our enemies will always be made in bad faith. Then again, with President Obama’s expansion of executive powers in declaring wherever Anwar Al-Awlaki is to be part of a battlefield, or with the National Defense Authorization Act allowing for the indefinite detention of U.S. citizens, the claim that anyone could be an enemy falls right in line with American foreign policy.

The prosecution did reference these enemies and adversaries with a bit more specificity: Capt. Ashden Fein said Al Qaeda, Al Qaeda in the Arabian Peninsula, and our “classified enemies” have access to the leaked information. At least the first two have been declared adversaries of the United States – but “classified enemies”? We’re not even allowed to know who our military is fighting?

Concluding his closing statements, Fein played an Al Qaeda propaganda video, in which a spokesperson discussed the State Department cables and said those fighting in the name of God have resources available to them on the Internet. We are supposed to be scared, and we are supposed to be angry with Manning for giving the Terrorists what they need. But with a necessary reality check, as Secretary of Defense Robert Gates was willing to give us, calling the WikiLeaks releases only “embarrassing” and the harms “modest,” it’s easy to see this claim is vastly overblown.

I hope these questions, those the lawyers introduced, and many more will be raised and explored at the (expected) court-martial. If the hearing is any indication, though, it won’t be easy: the military is keen to suppress journalist access, make a scene of uniformed supporters, and deny nearly all of the defense’s requested witnesses. But that’s what WikiLeaks has always been about – seeking truth and answering questions in the face of ever-powerful adversity.

One Year Later: WikiLeaks’ Financial Blockade

One year ago today, the financial blockade of WikiLeaks began. PayPal, Visa, MasterCard, and Amazon halted all financial transactions to the group. According to WikiLeaks, this cut 95 percent of their donations. Below, from WikiLeaks’ website, is a graph depicting just how damaging the blockade was:

As WikiLeaks says, “The blockade is outside of any accountable, public process. It is without democratic oversight or transparency.” Further more,”the US government itself found that there were no lawful grounds to add WikiLeaks to a US financial blockade. But the blockade of WikiLeaks by politicised US finance companies continues regardless.”

That these groups decided to cut funds from the journalistic outfit that provided more scoops and uncovered more abuses in one year than journalists from major newspapers have in a lifetime is pernicious in itself.

Worse, however, the blockade is a heinous manifestation of the collusion of government and giant, egregiously wealthy corporations to silence dissent, intimidate journalists, and discredit monumentally valuable human rights work. This is one aspect of corporatism that the Occupy Wall Street movement is railing against — when financial institutions and government work together to empower each other, it’s always at the expense of truth, transparency, justice, and the 99 percent.

Earlier this year, I wrote a lengthy summary of potential connections between U.S. media outlets, politicians, and financial institutions reacting to WikiLeaks’ CableGate release. That included this revealing PayPal bit:

PayPal representative Osama Bedier incited a minor uproar when he suggested he had been asked personally by the State Department to freeze WikiLeaks’ account. He later recanted that story, saying PayPal froze the account in response to public officials suggesting, though not to PayPal directly, that WikiLeaks has acted illegally.

Whether or not Bedier was personally contacted by the State Department (and it’s quite a bizarre slip of the tongue for him to suggest that that was the case), it’s clear these institutions are not acting because they think WikiLeaks might actually have broken any laws. Instead, they are falling in line with politicians who have smeared WikiLeaks, called Julian Assange a “high-tech terrorist,” and ignored the massive human rights abuses the releases uncovered.

One year later, the blockade continues, forcing WikiLeaks’ temporary suspension to raise money elsewhere. The organization has found some clever ways to circumvent the blockade, and even if they’re slightly less convenient than traditional means, it’s more than worth a little extra effort to help sustain the only real check to otherwise-unaccountable power that we have. You can donate here.

WikiLeaks reveals US opposed Afghanistan signing cluster bombs ban

As the Washington Post and Democracy Now report, diplomatic cables recently released by WikiLeaks reveal the United States attempted to dissuade the Afghanistan government from ratifying the Convention on Cluster Munitions. Afghanistan joined at least 61 other countries (though one cable puts the number at 93) in vowing to “destroy their stockpiles and clear the munitions remnants from their territory.”

Cluster bombs are especially heinous because they release many smaller explosives and disperse over such a vast area, they “cannot distinguish between military targets and civilians.” Often some of the smaller munitions fail to detonate, becoming inadvertent landmines.

As this cable details, the United States has not signed the treaty because it believes “cluster munitions continue to have military utility.” Furthermore, the U.S. argues that article 21 of the convention allows for signatories to “continue to cooperate and conduct operations with U.S. forces, and in turn for U.S. forces to store, transfer, and use U.S. cluster munitions in the territory of a State Party,” effectively circumventing the convention entirely. The U.S. continues, suggesting that a “low-profile approach will be the best way to ensure a common understanding that the CCM does not impede military planning and operations between our two governments.”

According to United Press International, near the start of the Libyan war, the United Nations claimed that the use of cluster bombs and other indiscriminate weapons could amount to war crimes.

Al Jazeera has replaced its Director after the release of a WikiLeaked cable that indicates he modified coverage of the Iraq War in response to pressure from the United States.

[This post was first published here at BradleyManning.org.]