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Legal Issues created by the War with Islamic Fascism
Topic: Legal Issues created by the War with Islamic Fascism (Read 63693 times)
POTH: Spy or Leaker?
Reply #450 on:
August 03, 2013, 12:50:40 PM »
Court Rulings Blur the Line Between a Spy and a Leaker
By ADAM LIPTAK
Published: August 2, 2013 336 Comments
WASHINGTON — The federal government is prosecuting leakers at a brisk clip and on novel theories. It is collecting information from and about journalists, calling one a criminal and threatening another with jail. In its failed effort to persuade Russia to return another leaker, Edward J. Snowden, it felt compelled to say that he would not be tortured or executed.
These developments are rapidly revising the conventional view of the role of the First Amendment in national security cases. The scale of disclosures made possible by digital media, the government’s vast surveillance apparatus and the rise of unorthodox publishers like WikiLeaks have unsettled time-honored understandings of the role of mass media in American democracy.
This is so even where the government was the nominal loser. Consider the case of Pfc. Bradley Manning, who dodged a legal bullet on Tuesday, winning an acquittal on the most serious charge against him: that releasing government secrets to the public amounted to “aiding the enemy.”
But a dodged bullet is still a bullet.
The military judge in Private Manning’s case ruled last year that there was no First Amendment problem with the government’s legal theory. Providing classified information for mass distribution, she said, is a sort of treason if the government can prove the defendant knew “he was giving intelligence to the enemy” by “indirect means.”
The verdict thus means only that military prosecutors did not prove their case. The legal theory stands, and it troubles even usual critics of unauthorized disclosures of government secrets.
“It blurs the distinction between leakers and spies,” said Gabriel Schoenfeld, the author of “Necessary Secrets: National Security, the Media, and the Rule of Law.” He said the government might have lost a battle but made headway in a larger war by “raising the charge and making it seem plausible.”
Something similar happened in 1971, when President Richard M. Nixon failed to stop the publication of the Pentagon Papers, a secret history of the Vietnam War. The Supreme Court’s ruling allowing The New York Times and The Washington Post to publish the papers is often said to be a high-water mark in the annals of press freedom.
But like the Manning verdict, the decision represented a shift in the understanding of the First Amendment.
“The American press was freer before it won its battle with the government,” Alexander Bickel, the Yale law professor who represented The Times in the case, wrote in his classic 1975 book, “The Morality of Consent.”
“Through the troubles of 1798, through one civil and two world wars and other wars, there had never been an effort by the federal government to censor a newspaper by attempting to impose a prior restraint,” Professor Bickel wrote. “That spell was broken, and in a sense, freedom was thus diminished.”
Worse, from the perspective of the news media, the victory in the Pentagon Papers case was distinctly limited and helped shape the Manning prosecution.
“A majority of the Supreme Court not only left open the possibility of prior restraints in other cases but of criminal sanctions being imposed on the press following publication of the Pentagon Papers themselves,” Floyd Abrams, who also represented The Times in the case, wrote in a new book, “Friend of the Court.”
According to a 1975 memoir by Whitney North Seymour Jr., who was the United States attorney in Manhattan in the early 1970s, Richard G. Kleindienst, a deputy attorney general, suggested convening a grand jury in New York to that end. Mr. Seymour said he refused. A grand jury was then convened in Boston, but it did not issue an indictment.
The “aiding the enemy” charge in the Manning case was based on military law, and it is not directly applicable to leakers in other parts of the government or to reporters and publishers. But the theory on which it was based has echoes in the more general espionage laws.
Until recently, its leading proponent was Nixon, who mused on the matter in a meeting in the Oval Office the day after The Times published the first installment of its reports on the Pentagon Papers.
“That’s treasonable,” he said to an aide, “due to the fact that it’s aid to the enemy and it’s a release of classified documents.”
In “Fighting for the Press,” a new book about the case, James C. Goodale, who was general counsel of The New York Times Company at the time, said President Obama has followed in Nixon’s footsteps.
“Obama apparently cannot distinguish between communicating information to the enemy and communicating information to the press,” Mr. Goodale wrote. “The former is espionage, the latter is not.”
But John Yoo, a law professor at the University of California, Berkeley, and a former Bush administration lawyer, said that distinction broke down in the Manning case because he did not make his disclosures directly to the establishment press.
“Manning’s defenders will say that Manning only leaked information to the 21st-century equivalent of a newspaper, and that he could not have known that Al Qaeda would read it,” Professor Yoo wrote in National Review Online.
“But WikiLeaks is not The New York Times or The Wall Street Journal, and it does not have First Amendment rights,” he added. “Manning communicated regularly with WikiLeaks’ founder and would have known about the group’s anarchic, anti-U.S. mission.”
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In June, David Gregory asked Glenn Greenwald a question in a similar vein on NBC’s “Meet the Press.” Mr. Greenwald had written articles on government surveillance programs for The Guardian based on materials from Mr. Snowden, a former National Security Agency contractor.
“To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?” Mr. Gregory asked.
Mr. Greenwald responded, “If you want to embrace that theory, it means that every investigative journalist in the United States who works with their sources, who receives classified information, is a criminal.”
The Obama administration seemed to adopt that view in seeking a court order to examine the e-mails of James Rosen of Fox News. The administration’s lawyers said there was “probable cause to believe” that Mr. Rosen was “at the very least” an “an aider and abettor and/or co-conspirator” in violations of the espionage laws.
New Justice Department guidelines, partly a reaction to the furor over the Rosen matter, say the department will not treat “ordinary news-gathering activities” as criminal conduct. But the guidelines do not define those activities.
Last month, a federal appeals court agreed with the Justice Department that James Risen, an author and New York Times reporter, must testify in a prosecution under the espionage laws or face contempt charges.
To date, there have been no prosecutions of journalists in the United States for seeking or publishing classified information. But two lobbyists with the American Israel Public Affairs Committee, Steven J. Rosen and Keith Weissman, were charged in 2005 with violating the espionage laws for conduct they said was functionally equivalent to journalism: they had learned government secrets and passed them along to others.
As in the Manning case, the firewall turned out not to be the First Amendment but the difficulty of proving intent. After Judge T. S. Ellis of Federal District Court in Alexandria, Va., ruled that the government had to show the defendants knew their conduct would hurt the United States, prosecutors dropped the charges.
But Judge Ellis had a larger message, too. He said the case “exposes the inherent tension between the government transparency so essential to a democratic society and the government’s equally compelling need to protect from disclosure information that could be used by those who wish this nation harm.”
“The rights protected by the First Amendment,” he added, “must at times yield to the need for national security.”
WSJ: Obama's Security Retreat
Reply #451 on:
August 12, 2013, 10:11:43 AM »
Though there are points of merit or interest in this editorial, IMHO what it misses is a lot.
Edward Snowden must be smiling. Fresh from gaining asylum from Vladimir Putin, the self-admitted stealer of U.S. security secrets can now boast that he has caused an American President to retreat on his core powers as Commander in Chief.
That's the import of President Obama's announcement late Friday, before he left for Martha's Vineyard, that he wants to overhaul the intelligence and data collection programs he inherited from George W. Bush and has used since he took office. Mr. Obama invited Congress to tie him and future Presidents down with new oversight and limits on a surveillance program that no one has found to have been abused in a single instance.
Mr. Obama's overture is dangerous politically and as policy. A President should explain to the American people why these programs are necessary against a terrorist threat that is far from defeated. As Mr. Obama spoke, the U.S. still had 19 embassies or consulates closed around the world for fear against a terror attack. While most have since been reopened, the uses of surveillance in warning of the potential attack would seem to be clear. Surveillance saves American lives.
(Not that we should know this, but the embassy closings were based upon listening in on a conference call of the much of the AQ team, not saving and reading Americans' mail)
Yet Mr. Obama has now joined the debate on his backfoot, conceding that new bureaucratic intrusions are needed to interfere and limit his own war fighters. "It's not enough for me, as President, to have confidence in these programs. The American people need to have confidence in them as well," Mr. Obama said. Well, yes, but a President's job is to give them that confidence, not to undermine that confidence at the start by saying the critics are right.
The President compounded the retreat by saying he wants a new adversarial advocate added to the current surveillance review done by the Foreign Intelligence Surveillance Court, or FISC. Even if the advocate's mandate is supposedly only for "privacy," this is a bad idea.
The President is essentially inviting into his councils someone whose duty is to oppose surveillance requests that are presumably necessary for security. But this is not a debate over whether to introduce New Coke in which you might need a devil's advocate. This is bringing in someone whose only job is to say no, and without responsibility for the consequences.
Such an advocate compounds the problems with the FISC, which is already a judicial intrusion on the executive that diffuses political accountability. This problem was predicted when Jimmy Carter created the FISC process during the last political panic over intelligence, in the 1970s.
Laurence Silberman, a former deputy Attorney General who is now a federal judge, warned in Congressional testimony in 1978 after having inspected the files of J. Edgar Hoover and others that "I am convinced that the single most important deterrent to executive branch malfeasance is the prospect of subsequent disclosure." The introduction of judicial approval into such war powers as surveillance for national security, he said by contrast, makes the executive less accountable because it offers an excuse for bad decisions or abuse: The judges said it was OK.
This is precisely what we have seen in the wake of Mr. Snowden's betrayals, with leaks and liberals blaming the FISC for being too much of a rubber stamp and even blaming Chief Justice John Roberts for naming too many Republicans and prosecutors to the FISC. So the same liberals who created the FISC as a cure-all now blame it for not constraining the President enough. Mr. Obama is also dodging responsibility by now proposing a fix for the FISC, in large part as a way to shield himself from liberal criticism.
Some of us warned in the 1970s, and have warned since, that such an executive branch role for the judiciary violated the Constitution's separation of powers and would lead to precisely such political complications. We even hear complaints now from the left and libertarian right that the FISC's proceedings are secret. No kidding.
These pages warned about that in the 1970s as well. "The element of judicial secrecy is particularly troubling," wrote Robert Bork, the distinguished legal scholar, in a March 9, 1978 Journal op-ed. "It would set apart a group of judges who must operate largely in the dark and create rules known only to themselves. Whatever that may be called, it debases an important idea to term it the rule of law; it is more like the uninformed, unknown and uncontrolled exercise of discretion." We can now add the secrecy complaint about one of its own creations to the list of reasons that the New York Times owes the late Judge Bork an apology.
As an unelected branch of government, the judiciary derives its authority in part because it holds proceedings and settles most disputes in plain public view. Rather than let the judiciary get further embroiled in the political branches, Chief Justice Roberts would help the credibility of judges and courts if he said the judiciary will not support any such rewrite of the FISC and would prefer to end its current participation.
Not that Mr. Obama's pre-emptive FISC concession will appease the anti-antiterror left and right. They're already pocketing this offer and calling it inadequate. This is because their real goal is to build in so many caveats and burdens on surveillance that it will cease to be a useful antiterror tool.
It's hard to believe a President as politically attuned as Mr. Obama doesn't understand this. He certainly knows how to resist Congressional pressure when he wants to. Yet the passion and argument he brings to bear on domestic issues seems to vanish when he addresses national security.
It's enough to make us wonder if he is reverting in his second term to the Senator who became the darling of the left to outflank Hillary Clinton and win the Democratic nomination. Perhaps the real Barack Obama isn't the President of the first term who used the Bush antiterror policies to pound al Qaeda. Maybe he really believes that he is the only President who can be trusted with such security powers, and so now he is going to use the controversy inspired by Mr. Snowden to hamstring his successors.
Especially if that is true, but even if he is merely trying to appease his left wing, wiser figures in both parties in Congress will need to protect the office of the Presidency and the country from his security retreat.
5th Circuit distinguishes speech and material support
Reply #452 on:
November 15, 2013, 12:36:47 AM »
Mehanna Ruling Draws Line Between Speech and Material Support
November 14, 2013
Arguments that terror prosecutions are criminalizing protected speech took another hit Wednesday, when the First Circuit Court of Appeals upheld terror-support convictions against Tarek Mehanna.
Mehanna is serving 17˝ years in prison after a Boston jury convicted him in 2011 of conspiracy to provide material support to al-Qaida, conspiracy to commit murder abroad, providing material support to terrorists and lying to federal investigators.
Likening terrorism to a "modern-day equivalent of the bubonic plague," the First Circuit Court of Appeals found jurors had ample grounds to find Mehanna's activities crossed the line into illegal material support. The ruling by Circuit Judge Bruce M. Selya acknowledged a delicate balance between "vital national security concerns and forbidden encroachments on constitutionally protected freedoms of speech and association."
But the evidence supports the verdict and Mehanna's sentence because his work was done in coordination with al-Qaida in an attempt to benefit the terrorist group.
The appellate court at times took a dismissive tone in addressing Mehanna's arguments to overturn his conviction. Some were cast aside as "meritless," while others were described as "convoluted theories" and "fishing in an empty stream."
Arguments offered in amicus, or friend of the court, briefs by Mehanna supporters including the American Civil Liberties Union (ACLU) also found little traction. In many cases, the external briefs raised issues Mehanna had not. "The law is settled that amici cannot ordinarily introduce into a case issues not briefed and argued by the appellant," the ruling said.
Mehanna's case drew sympathy from Islamist groups and others. ACLU Massachusetts Executive Director Nancy Murray wrote after the conviction that Mehanna's case proved that, "There is a Muslim exception to the First Amendment," and that Muslims were being prosecuted for "thought crime."
The Council on American-Islamic Relations (CAIR) Chicago chapter offered a similar claim, publishing an intern's article which cast Mehanna as a victim of overzealous FBI surveillance because he is a Muslim. The Muslim Public Affairs Council (MPAC) reposted a Guardian article on its Facebook and Twitter accounts titled, "Tarek Mehanna: Punished for Speaking Truth to Power."
But the appellate court stood by the jury's verdict in rejecting such arguments.
Mehanna came under investigation in 2006. By then, he already had traveled to Yemen in hopes of reaching a terrorist training camp. When that didn't work, he returned to Sudbury, Mass., where he began translating and posting material supporting al-Qaida and "Salafi-Jihadi perspectives," the court wrote.
Jihad may have violent and non-violent interpretations, the court noted, but "the record makes clear that the defendant used the term to refer to violent jihad — and that is the meaning that we ascribe to it throughout this opinion."
Evidence showed Mehanna's work was "in response to Al-Qa'ida's call," prosecutors wrote, "and that he was pleased to be associated with Al-Qa'ida through his work."
Mehanna's supporters rejected the appellate ruling just as they rejected the verdict. "The fundamental problem with the [appellate] ruling is that it allows the government to prosecute unpopular political speech," ACLU attorney Alex Abdo told the Boston Globe.
The argument that Mehanna merely engaged in protected speech can only be accepted by "looking at the evidence through rose-colored glasses..." the court ruled. "His coconspirators testified that [Mehanna] persistently stated his belief that engaging in jihad was 'a duty upon a Muslim if he's capable of performing it,' and that this duty included committing violence. The evidence further showed that, following United States intervention in Iraq, the defendant concluded 'that America was at war with Islam,' and saw American 'soldiers as being valid targets.'"
This case marks at least the third significant prosecution in which appellate courts dismissed claims by defendants and their allies that free speech was being criminalized. In the case of the Humanitarian Law Project, the U.S. Supreme Court found that free speech rights don't apply when the speech is used in coordination with a terrorist group to provide a service. The Fifth Circuit Court of Appeals similarly found that speech was used to show the defendant's intent to help a known terrorist group in a case involving Hamas support.
Mehanna's attorneys also argued that jurors were unduly influenced by graphic videos and accounts of al-Qaida attacks. The court acknowledged that there is no clear formula to balance the prosecution's need to show the defendant's awareness and intent against "piling on" in a way that prejudices the jury. The trial judge had witnesses describe some of the more graphic imagery rather than show it to jurors, and "evinced a keen awareness of the First Amendment issues" in his rulings and jury instructions, the appellate court ruled.
The material was relevant, however, because Mehanna was "inspired by terrorist rants, developed an anti-American animus, which culminated in his decision to travel to Yemen to join in al-Qa'ida's struggle." And Mehanna claimed that his beliefs precluded him from attacking Americans anywhere. Prosecutors could use the al-Qaida videos and Internet material to show that wasn't true, the court ruled.
"It should not surprise a defendant that proof of his participation in conspiracies to provide material support to terrorist organizations and to kill Americans here and abroad will engender the presentation of evidence offensive to the sensibilities of civilized people...," the ruling said. "Terrorism trials are not to be confused with high tea at Buckingham Palace."
Goldsmith on nat'l. security law and press
Reply #453 on:
November 15, 2013, 06:19:39 AM »
The Lawfare Wiki Document Library
Reply #454 on:
January 04, 2014, 11:12:08 AM »
It goes well beyond the post 9/11 years, but I think this is a good place for it.
Last Edit: January 04, 2014, 11:54:56 AM by Crafty_Dog
Re: Legal Issues created by the War with Islamic Fascism
Reply #455 on:
January 04, 2014, 11:55:38 AM »
Good find BD. I've taken the liberty of filling in the Subject line to facilitate finding this post down the road.
Fed judge strikes down NDAA
Reply #456 on:
March 03, 2014, 11:43:19 PM »
BD et al:
Curious as to the take on this:
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