State Department ordered Stephen Kim to leak

Update: A revised version of this article is at my white-and-orange blog: Daily Kos

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The Gray Lady has a short memory - she has apparently forgotten the egregious abuse and defamation she perpetrated on Dr. Wen Ho Lee back in 1999 - and how it cost her many tens of thousands of dollars (if not hundreds of thousands of dollars) when he successfully sued both the government, and her, for invading his privacy and other crimes.

In her new article on Stephen Kim, she appears to not have learned many lessons from that time. At least she did not title it "Korean Spy", however she has completely abandoned the principle of objectivity by saying things like "Kim lied to the FBI". No, Kim is charged with lying to the FBI, much like Thomas Drake was charged with lying to the FBI. Drake, of course, was exonerated, when all 4 'lying' charges against him were dropped, and the judge wrote that one of the things he was accused of lying about, well, he didn't do it. When the government charges someone with 'lying to the police', what it can sometimes mean, is that the FBI lied to someone, kept them in a room for several hours, got them confused, then pounced on a mis-statement or slight discrepancy in verbiage and then called that a lie.

If you don't believe me, go to youtube and type in "never talk to the police" - a video in which both a Law professor and a Law Enforcement Officer will explain how the system works. As in the Drake case, sometimes the law enforcement agent bends the bounds of propriety in their accusations of 'lying', and they use it as a sort of "psychological strategy" against the defendant, working both his own psyche and the media portrayal of his alleged offenses. As we can see, the New York Times has again fallen for this trick, and is again parroting the government accusations without sticking the word 'alleged' on the front of them.

HOWEVER

There is an interesting tidbit of information in this new New York Times article on Dr. Kim, who, like Drake, has been charged with Espionage for discussing material with a reporter.

Stephen Kim, unlike Mr. Drake, or probably any of the other non-spy Espionage, was actually ordered by the state department to leak to the media!!!! (A similarity though - Drake was told to keep his Department of Defense Inspector General documents -- the same documents the government later accused him of "retaining").

Then the CIA turns around and decides Kim has given out too much information - over the telephone! How do you decide that a conversation on a telephone is classified?

I don't know. We shall see.

Like Drake, Dr. Kim has refused to plea bargain. He believes he is innocent, and if you look at all the leaks that continually stream out of Congress and the Whitehouse (the Bin Ladin Raid being the most egregious in recent memory), you will find that he is no more guilty than hundreds, if not thousands of other government employees.

Leaking is as American as Apple Pie. We are supposed to be the country, that, with all it's faults, has always been able to talk about those faults, scream at each other about those faults, laugh at them, lampoon them, have a beer over them, whisper about them, but only during an actual declared war (not a 'contingency operation', whatever that is), have we decided that we should silence ourselves as if it were some sort of patriotic duty.

With the Kim case, the State Department told him to do what he did. He was following orders.

If I were on the jury, how, exactly, would I feel about that? About putting a man in jail for 15 years for doing what he was told to do?

What is going on in this case? Is Dr. Kim simply a pawn, like Drake, in some sort of larger game being played between the powerful forces of government - the CIA versus the State Department?

References

U.S. Pressing Its Crackdown Against Leaks, Scott Shane, New York Times, Jun 17 2011

things that hit your gut

Strange how you can read a 400 page book and barely shed a tear, then read a few paragraph blog and...

MY RAPIST FRIENDED ME ON FACEBOOK (AND ALL I GOT WAS THIS LOUSY ARTICLE)

The Orange Revolution is dying.

Natalia Sedletska, at Open Democracy Russia, reports on the legal troubles (i.e. they are on trial and may see prison time) of the political opponents of Yanukovich, who is increasingly looking like a dictator.

Link: Ukrainian politics on trial, 14 June 2011

Non-review: Cissy by Ralph Martin

Cissy, by Ralph G Martin, Simon & Schuster, 1979, is absolutely unbearable. Not because of the writing, the language, the organization, or the veracity. Those are all great. Rather it is because of the characters.

They are almost all utterly depressing. Perhaps it is personal, or perhaps it is a positive prejudice, an assumption that reporters, writers, and media owners are inherently 'good guys', white hats, defenders of free speech. . . .

Instead of alcoholic cocaine addicts who fire people because they get 'bored' with them, scream at their own children to the point where they 'divorce' each other, have a never ending string of family-harming affairs with other married people, cut their grand kids out of their will, and so forth and so on.

This book was like a car crash on TV - I didn't want to watch it exactly, but I got sucked in, and felt compelled to watch the whole thing. Somehow I wish I didn't.

If you have ever wondered about the origin of the "Aristocrats" joke, this is a good place to start. See also "Marie Antoinette" by Sofia Coppola, and "Sophia Tolstoy", by Alexandra Popoff.

If you read Poisoning the Press by Mark Feldstein, this is a nice prequel to it. Drew Pearson, Cissy's frenemy (eventually, almost every friend in her life would become an enemy) was Jack Anderson's mentor.

I would avoid picking up this book if you are in a down mood. I think it might be dangerous.

There is a tiny sliver of a happy ending; it lasts about one paragraph. Cissy's great grandchildren "broke the cycle of hate", according to her daughter Felicia. Good to know it's possible...

Oh. By the way. The name of the main character is Eleanor "Cissy" Medill Patterson. She was associated with the McCormick / Patterson newspaper family group, back when newspapers were family businesses of very wealthy families. She, along with her brother Joe, became major isolationists in the late 1930s, excoriating president Franklin Roosevelt, who excoriated them right back. Joe had adopted his anti-interventionist philosophy after his horrific experiences during World War I - Cissy, being a life long admirer of her brother, shared his views. Roosevelt told Joe that his papers had delayed the start of the war by a month or three, and humiliated (and angered) him when Joe offered his services to help the war effort. Thus, Cissy turned against FDR. If you have ever heard of the 1942 dropped Espionage Act case against the Chicago Tribune, this book can help explains the origins of the conflict.

The wheels really came off after the war - Martin describes several rumors of cocaine addiction, alcoholism, and orgies. After she died, she left her paper, the Washington Times-Herald to a group of it's main managers. (she had formed it from the Washington Times and Washington Hearld, of her friend William Randolph Hearst). Her survivors fought over her will - the description of this fight may cause one's stomach to turn. The managers sold the paper a few years later.

It would later become the Washington Post, according to Wikipedia at any rate.

The Venona Contaminations

The predecssors of the NSA intercepted mass quantities of Soviet telegrams in the 1940s. For the next several decades, the NSA tried to decrypt them.

Years later, the decrypts were declassified and released to the public. Cold war researchers would later try to match them up with various accused communists and thus prove right the Red Scare accusations of Senator McCarthy and his associates, such as Richard Nixon.

Now, a large number of these allegations have found their way into wikipedia. An example is here:

Washington Merry Go Round

If you wish to see others, do a google search as follows:

site:en.wikipedia.org venona

It is disturbing to find these articles - they almost invariably violate Wikipedia's Neutral Point of View rules. I.E., no controversy is mentioned, it is simply stated flat out 'they were KGB informants, Venona confirms it'.

This is an interesting phenomenon, and many historians have spilled a great deal of ink attacking each other over the accuracy of such things.

One has to wonder, though, stepping back. Many of these transmissions are from Stalin's secret police. The Soviet Union could not even produce a reliable census in Stalin's time because his underlings were afraid of being assassinated for reporting information that displeased him. Basic facts about everything from factory production to grain harvests were faked on a mass scale. The written reports of various bureaus were full of exaggerations, misleading statements, false statements, fabrications, and lies.

Would Stalin's intelligence service be any more likely to have produced reliable reports than his other services? For example, doesn't the same dynamic apply to a grain harvest, as applies to the 'harvest of informants' that agents are expected to recruit? And doesn't the same dynamic of the quality of a production line apply to the quality of the recruitment reported?

Would it not be a useful strategy for the KGB to disrupt the American government by creating internal paranoia and infighting? In fact, is this not what the Nazis intelligence services tried to do inside the Soviet hierarchy, foment paranoia and distrust, thus causing Stalin to execute a number of his own military officers before the World War II?

If these alleged informants were taken up on Espionage Act charges in our modern era, what evidence would be needed to convict them? Certainly not the word, alone, of a foreign intelligence officer. We would need concrete examples of information that the alleged agent actually gave to the foreign nation. Would we not?

Were there Soviet agents inside the US? Of course there were. Does that mean everyone who is in the Venona decrypts is automatically one of them? Well, it is easy to say so after they are dead and no longer around to sue for defamation. But in a court of law, you would need a lot more evidence than the word of an enemy intelligence officer, or their written records claiming 'so and so is a great source', to convict someone of Espionage.

IMHO.

Secrecy vs the newspapers - 1930s

Cissy Patterson was a fire-brand newspaper publisher. Ralph G. Martin's book about her contains a few tidbits about secrecy & the media back in the 1930s.

She published photos of British ships in US ports on the dawn of WWII - the secretary of the Navy, Knox, had specifically told her he'd put her in jail if she did this. Instead he ignored her.

The House Committee on Military Affairs subpoenad Waldrop, an investigative writer who had covered it's activities. Apparently he plead the fifth on all questions, and the committee gave up.

On the other hand.

President Roosevelt told her brother Joe (also a newspaper publisher) inner details about a trade between the UK and the US - ships for remote bases. This was in order to prove to them that the ships deal was reciprocal, not a donation. The reciprocal part had to remain secret though, presumably for reasons of neutrality. Joe and Cissy kept this quiet and 'endorsed' Roosevelt for election.

To be continued...

References

Cissy by Ralph G Martin, Simon & Schuster 1979, p. 409-413

Marcy Wheeler gets it right

There have been a 'spate' of headlines about Thomas Drake's case since all 10 original charges against him were dropped in June 2011.

They almost invariably use words like 'leak' or 'classified'. They are almost invariably wrong.

However Marcy Wheeler, a blogger, has gotten it right. She has written this summary for The Nation:

Government Case Against Whistleblower Thomas Drake Collapses, Marcy Wheeler, June 13, 2011

Note the differences between Wheeler's article and countless others.

1. She does not use 'leak case' or 'classified' in her title

2. She does not repeatedly state incorrect things like 'Drake was charged with leaking classified documents'. The 793 section of the Espionage Act doesnt even used the word classified , 'leaking' is not a valid legal term, and Mr Drake was never charged with 'delivery', only 'retention'. Aside from that, Wheeler does use the term 'ordinary leaking', which implies, quite correctly, that what Mr Drake actually did happens all the time in Washington - he talked to a reporter off the record.

3. She actually uses the word 'whistleblower'. Not 'charged leaker'. And she uses it in the title. Now you can argue whether or not 'whistleblower' is a non-neutral word that journalists should shy away from .. but how is 'leaker' neutral? When he wasn't even criminally charged with doing it?

4. She points out that two of the documents he had were actually unclassified. She also mentions the prosecution tried to hide the fact that one of them was unclassified from the defense for a long time in pre-trial "discovery", which is not very professional of the prosecution.

5. She points out the difficulty of prosecuting someone for 'leaking' information thats unclassified, under an anti-spying law.

6. She points out the judge held up Drake's right to defend himself, that was the motivation for disallowing the government's use of the Silent Witness Rule and CIPA "substitutions" and "redactions".

7. She goes into detail about the Sterling case, and gives other historical context like the AIPAC case and the Ellsberg case.

8. She points out that Manning is under the UCMJ, so technically it is not the DOJ that is going after him

9. She points out that the Wikileaks people are under Espionage Act investigation.

Now that is a damn fine article. Compare it to the many other articles floating around. I am having some sort of 'triggering' episodes, reading things like Pete Yost's AP article which accuses Drake's team of Graymail. How do you 'graymail' the government with unclassified information? It makes one's mind fly off on all sorts of angry directions that lead one nowhere good. The government often tries to paint whistleblowers as 'crazy' - well if there is certainly enough bad information floating around the media, the government, & elsewhere to drive a third party observer crazy, I can't imagine what it feels like to be the actual person who had these allegations made against them. Even after all charges against them are dropped, some sectors of the media (and government spokes people) are still getting the fundamental details of the case wrong. I guess as an upset third party observer, one can only tell one's mind to chill and deal. And maybe write a few letters to the editor.

Fine. So didn't the government claim he had given classified information to a reporter? Isn't that leaking? Yes. The government said that many times in it's indictment. The DOJ gave out a press release on the case (which makes it hard to understand arguments that Obama's administration was in no way involved in the case, and that the US Attorneys were acting independently). But saying something in a press release and charging somebody with a crime are two different things. In the end, the judge ruled that A. none of the hushmail emails between Drake and Gorman were classified, and B. there was no evidence that Gorman's articles contained classified info (the government had tried to hide the articles at trial too; Jesselyn Radack of the Government Accountability Project, of which Drake was a client, points all of this out at her Daily Kos blog1,2). I'm not saying the reports should leave out these details. I'm just saying there should be a little more fidelity to reality.

And not all the media reports are so upsetting as the AP article. I guess it is human nature to magnify the negative and ignore the positive - that charges against Mr. Drake have been dropped. One still has that dull feeling, "this never should have happened in the first place". And the wish for this blatant, obvious fact to be acknowledged.

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PS. A note, Marcy Wheeler says Mr. Drake in no way, shape, or fashion wanted to "cause the US harm, as the Espionage Act requires". The Espionage Act doesn't actually require that. I have made this mistake myself in the past. In US v Gorin (circa 1941) and other caselaw the Espionage Act also includes the concept 'or aiding a foreign nation' - enemy or ally. It also depends on what type of information is being discussed and which paragraph of the Espionage Act is used. IIRC that's also the reason the government has been able to go after people who gave information to Israel, an ally, under the Espionage Act over the years.

That is one of the criticisms of the act - the language is so convoluted and vague that people have a hard time figuring out what Congress even intended by it.

References

[1] ANOTHER WaPo Editorial: Prosecution Against Drake Poorly Conceived, Jesselyn Radack, 6 13 11, Dailykos.com

[2] Powerful Ruling in the Drake Case, Jesselyn Radack, 6 2 11, Dailykos.com

[3] Government Case Against Whistleblower Thomas Drake Collapses Marcy Wheeler,
June 13, 2011

Richard Nixon tried to leak the Pentagon Papers

CNN has some very interesting 'blog interviews' about the Pentagon Papers.

The first is with Daniel Ellsberg, who along with Russo, gave them first to the Congress, and then to the media.

Daniel Ellsberg: All the crimes Richard Nixon committed against me are now legal

The second is Ken Hughes, a think-tanker who studies Nixon (among other things).

Secret Nixon tapes expert Ken Hughes: At the release of the Pentagon Papers forty years ago, Richard Nixon was 'gleeful and fearful'

In Hughes' interview, he flat out says that Nixon tried to have his staff leak a portion of the Pentagon Papers that made John F Kennedy look bad.

So, if we count back through history the executive branch adminsitrations who have, themselves, been involved in "leaking" information, we have the following.

Eisenhower - used CIA's secret Iran operation in his campaign speeches for re-election

Johnson - said his NSC staff leaked 'like a sieve'

Nixon - Wanted to leak the Pentagon Papers to make JFK look bad

Reagan - Oliver North has described the administration as leaking 'like a sieve'

Bush - Staff gave out information about CIA agent Valerie Plame

Obama - Staff gave out information about the Osama Bin Ladin assassination raid

Now lets throw in Intelligence folks who 'mishandled' information.

Bill Casey - Reagan's DCI was a scatterbrain who took home papers and lost stuff frequently

John Deutch - Clinton's DCI took home papers he wasn't supposed to

Sandy Berger - A high level Clinton person who smuggled classified info 'in his pants'

Gonzalez, Cheney - see http://www.harpers.org/archive/2011/06/hbc-90008114

Richard Shelby, Pete Hoeckstra - http://www.harpers.org/archive/2011/06/hbc-90008114

An early DCI whose name escapes me - This person 'leaked' information about the CIA in order to make it look good, when the president and/or congress were lambasting it. The name escapes me, I apologize.

This is a short list. I'm sure someone else could make a much longer list. But it is an interesting one. Administrations who retaliate against people who try to communicate journalists are not simply involved in the 'subtle conflict between national security and the publics right to know'.

They are also involved in blatantly hypocritical behavior. Each one of them has only one argument with which to defend themselves; "When the president does it, it's not illegal". This was Nixon's defense of various Watergate activities (not 'leaking' per se). However, when I watched 'Frost/Nixon' in a local movie theatre, the gasps from the audience at this phrase made me realize that this is not an abstract notion of governmental power theory. People, human beings, intuitively 'get it', that their leaders are not supposed to be above the law.

Since almost every administration leaks, then everytime such an administration prosecutes a whistleblower under 'leaking' laws, that administration is almost certainly placing itself above the law it is using to punish others.

References

Secret Nixon tapes expert Ken Hughes: At the release of the Pentagon Papers forty years ago, Richard Nixon was 'gleeful and fearful', CNN.com 6-10 , Jay Kernis & CNN, 'blog interview' with Ken Hughes

Daniel Ellsberg: All the crimes Richard Nixon committed against me are now legal, Jay Kernis & CNN, 'blog interview' with Daniel Ellsberg, CNN.com 6/7/11

Burn Before Reading: Presidents, CIA Directors, and Secret Intelligence, Stansfield Turner, Hyperion, 2005

Oliver North Interview, PBS Frontline, "The Drug War", circa 2000