08/19/13 – Marcy Wheeler – The Scott Horton Show

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All right, y'all, welcome back to the show.
I'm Scott Horton.
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All right.
Next up is our friend Marcy Wheeler in the blogosphere.
She's known as Empty Wheel.
That's emptywheel.net.
Welcome back to the show, Marcy.
How are you doing?
Hey, thanks for having me back.
Well, you're welcome.
Thank you very much for being here.
I sure appreciate it.
And I sure appreciate your blog.
I learn so much every time I read it.
I hope people go and check it out if they're not already completely familiar.
Let's start with the detainment of, is that the proper legal term for what happened to Glenn Greenwald's partner at the Heathrow Airport in London yesterday?
Yeah.
So yeah, Glenn Greenwald's partner was detained in Heathrow for nine hours, which is to the minute roughly what they're allowed to do without having to go to a judge.
And under what pretext?
Well, they held him under a terrorism pretext.
So even though they started asking him questions right away about the NSA, they claimed that they stopped him because they thought they had to make sure that he wasn't a terrorist.
So we're getting awfully close to defining journalism as terrorism now.
Yeah, I wonder if that's just the implication or they just decided to break the law.
I guess it it becomes precedent either way, right, if they get away with it.
Yeah, I mean, already in the UK, you know, activists had said that people of color get stopped more often than white people.
That's not surprising.
In the United States, the same thing can happen and they don't even have to say terrorism.
And, you know, one of the times my husband's not a citizen and one of the few times he's been detained, we were coming in from Brazil.
And most people like David Miranda, Glenn's partner, were just transiting, were just going through the airport and a ton of them got pulled aside.
And and, you know, so I'm very sensitive to the fact that Brazilians just transiting in the United States get pulled aside all the time.
In the UK, it's supposed to be limited to people you're plausibly trying to make sure aren't terrorists.
But in this case, they pulled over a high profile journalist partner.
And ultimately, the other interesting part of it is they confiscated all the devices he had with him.
So laptop, phone, et cetera, et cetera.
Right.
I think they said even his X-Box.
Is that right?
Yep.
All right.
I didn't know people travel with their X-Boxes, but why not?
I guess you're really into that kind of.
Well, the New York Times did report that he that he may have been bringing stuff from Glenn to he was visiting Laura Poitras in Germany, who is a documentary filmmaker, one of the other people who's been central to the whole Edward Snowden story.
So, you know, but as people who even were sympathetic to the notion that what the UK was doing was actually trying to reclaim stolen goods, meaning the leaked goods, the leaked documents to Edward Snowden had given Glenn and Laura, you know, they didn't need to hold him for nine hours if all they wanted were his devices.
Yeah, and it's not like he's going to have all of the documents on him.
And are they are they kind of admitting that they still can't tell what all Edward Snowden may have downloaded?
You know, there's conflicting reporting about that, and I suspect I mean, one of the things that recently did come out, I think it was Reuters, but I don't guarantee it.
I think it was a Mark Rosenbaum story is that they now believe that he was downloading stuff when he worked for Dell before he worked for Booz Allen Hamilton.
So going back several years, we might ask what Dell does for the NSA that would give somebody this much access.
But apparently it did.
So, you know, I think they're beginning to suss out what and in that case, in the Dell case, he did leave some kind of digital track.
So they were able to find that he was there.
Of course, this is a this is a classified leak about a legal investigation into classified leak, which is we should always point out the irony of that, because those leakers that make it clear that he pulled stuff when he was a Dell will never be prosecuted in the same way that they're trying to go after Snowden himself.
Right.
Yeah.
They make that contradiction plain on a daily basis to the authorized leaks versus the unauthorized ones and the legality, which goes right back to the point about detaining Glenn Greenwald's partner under any law.
I mean, why not just call it a parking ticket thing or whatever?
Because the truth is, just like Glenn Greenwald's whole book is about at this point, there's no such thing as the law.
These are all just you know, that's a fancy term for a pretext for a government agent to kidnap somebody.
That was why I was stumbling over detain at the time at the beginning of the show is because who cares what they call it kind or what do you call it when it's imprisoning someone temporarily, whatever.
But it seems like if you call it detain, you sort of make it sound like it was actually lawful at some kind of pre agreed upon process rather than just the arbitrary will of tyrants.
Right.
I mean, detain and it's nine hours, I mean, you know, detain at the airport.
And of course, he wasn't allowed to have a lawyer the way it works in in the UK.
If you don't cooperate, then you can be prosecuted for not cooperating.
There's a whole that there's a whole lot that's packed into that.
And I'm glad that this has gotten as much attention as it has, partly because there are a lot of people, including Andrew Sullivan, who have been kind of saying, I'm not sure this NSA deal is as big of a deal as you guys make out because I'm really worried about terrorists.
But last night after this happened to David Miranda, whom he knows through Glenn, he was like, you know, this is arbitrary.
This is this is where things start hitting the fan, because it's clear that he is that they're going outside of the law to go and try and get to Glenn.
And of course, you know, whether or not Miranda was carrying documents between Poitras and Greenwald, are we now at the point where that journalistic function becomes a problem, becomes prosecutable?
It certainly seems to be the case.
But the other thing is that also, I think, raises attention to the fact that this happens.
I mean, it happened.
One of the reasons why Poitras is in is in Germany is because that happened to her like 40 times every time she crossed the border.
She's an American citizen, right?
She's an American citizen, unlike Miranda.
But, you know, Miranda was transiting from, you know, through London from Germany to go back to Brazil.
He's a Brazilian citizen.
The Brazilian government is sort of pissed, which is interesting, because as the U.S. and the U.K. continue to Bigfoot their Snowden response, they continue to piss off Latin America.
You know, I joked last night that Miranda should feel good because he got the same treatment that Evo Morales, the president of Bolivia, got right.
All of Europe decides to stop this guy.
And it's absurd, but that's where we've gotten, I guess.
Yeah, in this day and age.
Consider that the red carpet treatment.
That's a mark of distinction and honor.
Yeah, right.
All right.
Well, so here's the thing to discuss.
What a stupid move.
I mean, if you're the military intelligence people or whatever, they didn't apparently think this through very good.
Or they need to fire and hire a different psychological profiler or something like that, because this is just going to piss off Glenn Greenwald.
And now he's just going to publish more and louder somehow.
Come on.
Well, I mean, I've been saying that from the start, that if they really cared.
I mean, I believe that Snowden, at least to some extent, has documents that are as inflammatory as he says or as crazy as he says.
And, you know, back in the old Cold War era, and I said this, I think, even before I said it, I think Snowden was lying to Russia.
But back in the Cold War, you know, when we had spies, when we had people who were willing to trade secrets and choosing to trade secrets, what we would do, first and foremost, is minimize the threat.
And at that point, I said, you know, if you want to minimize the threat, you find a way to get Snowden to retire quietly in the south of France where, you know, he isn't in your custody, but at least he's not going to be turning everything over to Putin and what have you.
But in this case, at every step, the U.S. has sort of exacerbated the problem, partly because, you know, as I said, the treatment of Evo Morales is a good example.
I mean, partly because you're making it clear that this is about imposing U.S. power all over the world.
And one of the things that Snowden's revelations do, there's been less focus on this recently, is they describe the degree to which the U.S. uses its advantageous position on the telecommunications networks.
It's just a lot easier for the U.S. to spy on every other country than it is for them to spy on the United States because we've made it so much of the telecommunications infrastructure passes through the United States, and we just pick stuff up as it goes through.
And that's one of the things that Snowden's revelations make clear.
You know, I think the Russians and Brazilians and everyone else knew that already, but it makes it clear to all of us.
Right.
Well, and the thing is, it's funny.
Obama's virtually exiled him to Siberia, right?
But then only just for the PR that he could say, see, Snowden's in Russia.
What a bad patriot he supposedly is kind of a thing when we all know that Obama's the one who exiled him there by taking his passport away.
Illegally, by the way, right.
Just on his executive order, which he has no authority to do.
I mean, I'm going to put aside the question of, you know, of will of what ended up putting Snowden in Russia.
But part of what's going on and I'm going to forget her name, but it was at the New Republic.
You know, one of the one of the issues is that the United States turned around and dealt with this like a spoiled child.
Like Putin's a jerk.
Putin is not a nice person.
But nevertheless, Putin has a degree of power and a great deal of ego.
And we dealt with Putin like we were dealing with a child.
You know, we dealt with Putin saying, oh, give him back.
Just give you have to give him back rather than saying, you know, what would it take to give?
You know, we'll give you Victor Booth, who you've been asking us for for a while.
If you give us Snowden, let's make a deal.
And, you know, one of the things that this whole episode has shown is that that this kind of big footing just doesn't work.
I mean, regardless of how much more powerful we are than Russia, Putin is going to get his way.
Every opportunity he has to get his way.
And we've just made it a lot easier for him in this case.
Right.
But I mean, then again, there were strong indications, right, that Snowden wanted to come to the Western Hemisphere and go down to South America where it's, you know, quite arguable that he would have been a lot easier to get if Obama really just wanted to get him, that they could have gotten him, you know, if he's down in Bolivia or something.
But they they've gone to every effort to leave him, you know, even grounding the Bolivian president's plane, as you mentioned, in order to keep him isolated in Russia.
So it doesn't seem like I mean, you're right that they're playing their hand badly, but it seems pretty deliberate that they're playing it badly.
They want him there.
They are.
But after and I and I agree.
And certainly when they downed Morales, I certainly agreed at that point.
One hundred percent was what you said.
But after watching or, you know, watching via Twitter by Alexa O'Brien's amazing Twitter feed, the Bradley Manning sentencing, you know, it became clear how really paranoid they are about having the Bolivars in Latin America, meaning, you know, they basically said Bradley Manning is at fault for all of the Bolivars challenging the Washington consensus, which is complete nonsense.
You know, they they went so far as to suggest that, you know, the mere increase in usage of neoliberalism is due to Bradley Manning.
Which is crazy.
But but it was this crazy paranoid argument they were making on the stand to try and get a longer prison sentence for Bradley Manning.
And it really betrayed a great deal of worry about having these Latin American leaders who are suggesting that maybe, you know, maybe maybe redistributing wealth works better than just having super rich oligarchs.
And and I found it really interesting.
I mean, I think it's a real testament to to insecurities in the United States about the the the power that that ideology, the Bolivar ideology might have, particularly backed by by oil and gas as it increasingly is.
So.
Right.
Side note, but but I find it interesting in this case.
And so I think to some degree they were as worried that Edward Snowden would would further empower this ideology that directly challenges the efficacy of the Washington consensus, if that makes sense.
Yeah, true.
And, you know, if they really are just focused or to whatever degree they're just focused on trying to make Snowden look bad for being in Russia, they could have done the same thing.
They could have demonized him in the same way if he was, you know, in South America and all that.
I think they really did.
Just it is kind of a ham handed approach up there in this administration on on virtually every issue.
Yeah, I mean, even if and I don't and you don't.
But even if we were on the administration's side and thought, well, you know, you have to get you have to neutralize.
Neutralize Snowden at all costs, even if you bought that.
I still think their response has been ridiculous.
I think it's been completely ineffective.
And and in fact, where we started this Miranda detention of Glenn's partner in in the UK, I think is another example where you just you know, you're just proving everything that Snowden was trying to reveal, which is that the U.S. is abusing its power.
It's big footing.
It's, you know.
Yeah, we're not targeting you.
It's all about terrorism here.
Let's detain the partner of the journalist who's exposing us under terrorism powers.
And they really are just clumsy.
Now, here's another important thing.
I think in Justin Raimondo's column at antiwar dot com today, he refers to a statement by Glenn Greenwald.
I forget exactly where, where he says that.
I guess he was asked in an interview whether he's worried about coming back to the United States, whether he'd be prosecuted because a bunch of loudmouths in D.C. have been talking about prosecuting him for journalism.
And now he said something brave about the First Amendment and how he ain't afraid and he's coming back.
And Justin Raimondo says, no, stay gone.
You know, and I know there is no First Amendment and that actually you're not safe.
And so don't be a martyr.
Just stay where you are and keep publishing things.
And I was wondering what you think about that.
I mean, because after all, that's the for a constitutional lawyer like Glenn Greenwald.
That's the place to make your stand.
Can they really just prosecute a journalist for doing investigative journalism?
And a lawyer journalist, no less for doing investigative journalism in America?
Is the First Amendment completely dead or not?
That's a pretty big thing to do or not do.
But I guess it was more of a personal thing that Justin was saying.
If you really value your liberty, you will not come back.
Well, I mean, look at Spartan Gelman, who, you know, as you know, he's the journalist, too.
He's the other journalist who got a lot of the Snowden leaks.
And he published on Thursday night a bunch of details about the violations the NSA has had on these programs.
And there, you know, I do think that they would go after Glenn a lot quicker than they would go after Barton, partly because Barton works for The Washington.
You know, he's publishing in The Washington Post.
He's not publishing The Guardian.
People like to say, oh, The Guardian is the UK.
I like Gelman, but he's no Greenwald.
That's true.
But it was funny because after he published that and remember, that he'd had this long interview with the NSA's compliance guy, and that was supposed to all be good.
But then at the last minute, the White House panicked and said, no, no, you can't publish anything by compliance guy.
And then the very next day, compliance guy had a conference call with journalists to kind of rebut what Gelman had said.
And they didn't even invite Gelman.
You know, they didn't invite Gelman to fact check the things that the compliance guy had said, you know, just five days before because they couldn't subject themselves to that risk.
So I think it's funny.
I think Gelman is no Greenwald, although some of his stories have been just as important as what Greenwald has done.
I do think they would go after Greenwald a lot quicker.
But I also think, you know, the U.S. is a lot more willing to, say, prosecute journalists if they work for Al Jazeera, if they're overseas, you know, if they're in Yemen.
As bigfooted as they are, as stupid as detaining Miranda was, as stupid as detaining Evo Morales was, I think that they believe probably rightly that American citizens aren't just going to pay attention or are not going to pay attention unless it happens in this country.
Yeah.
But I could be wrong.
I mean, hey, there's just no denying how stark of a bright line that would be crossing to simply.
I mean, we do not have an official secrets act in this country because this ain't England.
We declared, well, somebody back then declared independence from them.
And we have the First Amendment and we either have the First Amendment or we don't.
And even for people who hate Glenn Greenwald, that's the same one that protects your right to choose which church you want to go to, too, pal.
Right.
And I mean, the other thing to remember, though, is if you look at what happened, what's happening with James Rison and, you know, I think the chances that he's going to end up doing jail time to protect his source and to protect the notion of a source is still pretty high.
And, you know, most people I think who have observed that closely believe that was the point.
You know, they wanted to prosecute Rison and his sources for the original NSA story, found they couldn't do that.
So they went after this other story and used every opportunity to say Rison needs to testify, Rison needs to testify, Rison needs to testify.
So in that case, they're finding another way to probably make Rison go to jail.
And then you look at Lavabit that tried to, I think you had somebody on talk about that last week, which is the email provider that Snowden used, and he had been getting some kind of request probably from the FISA court, and rather than comply, just shut down.
And, you know, there are reports that they may try and prosecute him for choosing to go out of business rather than fail to provide his customers with the guarantee of security that they thought that they had.
And that's, you know, that's another striking issue because if he can't guarantee, you know, if he goes to jail because he's trying to basically fulfill a contract with his customers, that's another huge problem.
Are they going to prosecute him for not staying in business so that he can continue betraying his customers' contract?
What?
Right, right.
I mean, that's a problem.
And, you know, of course, in that case, they're doing it with complete secrecy.
And I think if what I just described is in fact what's happening, that they basically were trying to require him to renege on the promise he made to all of his customers, not just Edward Snowden, then, you know, I think everyone would be up in arms because it's a business issue.
It's a contractual obligation issue.
And we are getting close to the point where, you know, businesses need encryption.
They need secrecy just as much as private citizens do.
And if the government can do this to private citizens, they can do it to businesses as well.
And I think, you know, that's one thing.
Again, the government is going to try and hide, but I think increasingly they're going to be less able to hide.
Man.
I mean, that is really something else, right?
The headline is for a week that this guy shut his company down rather than – because that was his choice.
He can either continue and turn over this information.
Presumably they were asking for everybody's password, that kind of thing.
He can either continue doing that at gunpoint or he can just go out of business.
And then the truth is, no, he wasn't even allowed the option of going out of business.
He was threatened with arrest and prosecution for choosing to go out of business.
He didn't even have that option apparently.
Wow.
That is really something else.
And it's here at boingboing.net, by the way, if people want to look at that.
Threat of Lava Bits Owner Threatened with Arrest.
That is really something else.
And then, oh, yeah.
Did we get a chance to mention about this thing where the head judge of the FISA court has said, actually, we can't provide oversight.
Never mind whether they're transparent or not.
The chief judge of the FISA court says that me and my colleagues, we're a joke.
Yeah, there's no check and balance here at all.
I'm roughly paraphrasing, Marcy.
Forgive me.
No, no, no.
You're right.
So the chief judge of the FISA court, Reggie Walton, who, incidentally, is the same guy who prosecuted Scooter Libby.
So I've gotten to meet him a couple of times.
He had, in the past, said we're not a rubber stamp.
He had described a couple weeks ago he sent something to Patrick Leahy, which is available online, which describes their process, which is actually an interesting document.
But in response to Barton Gelman's story on Thursday night, he – and one of the things that Gelman reported, which is – this is one of the big shoes that's going to drop, which is that in 2011, the FISA – sorry, the NSA started to do something, didn't tell the FISA court about it for months.
And when the FISA court finally reviewed it in the annual reauthorization process, they said, no, that's illegal.
That violates the Fourth Amendment and put a halt to it.
First of all, it says that, you know, the government is kind of inventing new approaches without telling the FISA court using the same law.
And that means it could be up to 11 months before the FISA court is actually going to get a peek at this.
They didn't know about it at this case.
But I think as more and more of these revelations come out, I think Walton, Judge Walton, is beginning to realize the cracks in the system.
And no, you know, basically what he said is the FISA court wasn't set up to be an oversight.
They weren't set up to audit the NSA's claims.
They have to trust the NSA's claims, and they have to trust that the NSA is going to be forthright with them about these claims.
And they're not – and this is what I've said from the start.
I don't think the FISA court is a rubber stamp, but I think they have been defined by statute to have a very limited role.
And that's one of the things we're seeing now, which is that they, you know, they're the ones the government points to to prove that they're operating soundly.
But they don't have any independent way of getting this information.
And there are a couple of instances where it's fairly clear the government was misrepresenting both the value of these – basically the value of these programs.
And in some cases, they've – you know, I've in the past shown that some of the authorizations and some of the applications made to the FISA court have relied on tortured interrogation.
And so you've got illegal wiretapping building on top of torture all hidden behind the FISA court.
So, you know, it's – the FISA court – that's a problem.
And what I just brought up, that sometimes the information that goes to the FISA court is based on torture.
That would have been found more likely if there was an antagonist in the court, you know, if there was a defense attorney or somebody in the court.
And in the absence of this, the fact that the FISA court is at the mercy of the NSA to hand over the information and be honest, I think, is a real fundamental problem with them as an oversight body.
Well, and then when they passed the FISA amendments in 08, is it fair to say that – you know, because obviously the – well, I don't know how obvious.
The Bush administration had been caught with the illegal program, and they had to shut down at least parts of it or something.
The Democrats wrote into the Republican safety and legalized what the Bush team had been doing.
So making the point moved about all their criminal violations of the law and all that and giving immunity to all the telecoms that helped them do it at the same time.
But then what it did really – didn't it really make a pretty big step in the role of the FISA court, a big change, where they're really no longer even granting individualized warrants?
They really just grant general warrants against categories of information rather than targets that the NSA is even looking for?
I mean, that's the way I've been paraphrasing my understanding of it since 08 when the whole thing was explained to me in the first place.
Is that not about right?
Yeah, it's actually – it was a gradual process that started from 2004 to 2008, and two things happened.
One, as you're right, basically the government goes to the FISA court and gets programmatic approvals.
They'll go and say, OK, we want to spy on al-Qaeda.
And the FISA court says, OK, that's fine so long as you follow the rules, don't target anyone in the United States, follow the minimization rules, yada, yada, yada.
And that's what goes on as opposed to previously where they'd go, I want to spy on Anwar al-Awlaki, who we believe is part of al-Qaeda, and the court would then approve and did, almost certainly, getting a pretty broad collection on all of Anwar al-Awlaki's communications.
So that's one difference that happened.
But the other difference that happened as they were trying to make Cheney's illegal program legal, and it started back in 2004, is that they would go to the court and say, hey, we've got this thing.
We want to collect all of the Internet metadata in the country, and we'd like to have your rubber stamp for it.
And this is where they get called a rubber stamp, by the way.
Here's a novel legal theory.
Would you mind approving the novel legal theory so we can use your stamp of approval to claim that what we're doing is legal?
And the government, you know, the FISA court approved that and then approved using the Section 215 to collect all of the metadata and subsequently has approved, we think, probably a bunch more of those decisions.
And those have been described as more constitutional questions.
You know, they go to more fundamental questions about how the Fourth Amendment works and how the First Amendment works and how a bunch of court precedents work.
And that's the problem.
That's the other problem.
You know, in 2008, they were given a completely different role as far as defining what the NSA could do.
But even before that, they were being asked to make the kinds of decisions that usually appeals courts and the Supreme Court make, and they were doing it in secret and without any opposing side to kind of influence their decisions.
Right.
And then so that's what the NSA files are revealing now is the extent to which they're able to just take all these interpretations and just run with them and basically collect and collect what they want and only call it collecting when they want.
Right.
Or target when they want or any number of other words they've redefined.
Yeah.
Amazing.
All right.
Good times.
I'm sorry I've already kept you a little late here, but I really appreciate you joining us as always, Marcy.
Great to be here, Scott.
All right, everybody.
That is the great Marcy Wheeler, EmptyWheel.net.
That's her great blog.
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