01/16/14 – Trevor Timm – The Scott Horton Show

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All right, y'all, welcome back to the show.
I'm Scott Horton.
This is my show, The Scott Horton Show, and our first guest on the show today is Trevor Tim from the Freedom of the Press Foundation at PressFreedomFoundation.org.
Man, I swear you got to fix that.
You're driving me crazy.
Welcome back to the show, Trevor.
How are you doing?
Pretty good.
How are you?
I'm doing great.
Appreciate you joining us again.
And I guess let's start with the big news that Edward Snowden has now joined y'all's board of directors, which I think puts him in pretty good company, huh?
Yeah, it was pretty exciting.
Just two days ago, he was going to be joining on our board already.
We have Daniel Ellsberg, the famous Pentagon paper, and the NFA reporters who originally wrote the stories, Laura Fortress and Glenn Greenwald.
So he's exactly the type of person that we started our organization to encourage to come forward with information and bring about the type of accountability journalism is so important in this country.
And so we couldn't be prouder to have him on board.
Cool.
Now, I mean, I don't really see one, but I can sort of anticipate that somebody is going to try to bring up a conflict of interest here.
Is there one at all?
Well, I don't know what the conflict of interest would be.
We started this organization over a year ago to promote and defend and encourage whistleblowers to come forward and really emphasize that the war on whistleblowers is also a criminalizing of journalism, in a sense, because there's no way for journals to get information to the public without sources.
And so, you know, we were calling on news organizations to publish more government secrets in the public interest and for whistleblowers to come forward with information despite the risks.
And, you know, Edward Snowden embodies everything that we started this organization for.
So I can't imagine any conflict of interest.
You know, we think he's a perfect fit.
Yeah.
I mean, I was just trying to think like Fox News for a second as far as, you know, Greenwald reporting on the story and then having the guy on the directors and this and that.
But whatever, like you're saying, that's what the whole thing was created for in the first place.
So, yeah.
And it's not we're not doing the actual NSA reporting.
You know, Greg Greenwald has his own organization and works with other publications.
We're more about promoting the ideas around press freedom and how the First Amendment is crucial in reporting on all this and also how the surveillance can affect journalists and how they can potentially prevent the surveillance from affecting their job.
And so that's where Snowden would would fit in with us.
Well, I know that Daniel Ellsberg is really excited about what Edward Snowden has done.
He calls him his hero and all that.
And I know that since I've been talking with Dan Ellsberg back and, you know, starting back in, I guess, 2005, 2004 or 2005, he's always and I've always tried to give him an opportunity on my show to give a call out directly, a call to action to government employees out there who, you know, whose bosses are committing acts of wrongdoing against, you know, whether it's Iraqis or Afghans or Americans or whoever, that, you know, there comes a time, hey, if you're brave enough to take a bullet fighting for Hamid Karzai's regime, you're brave enough to do a couple of years in the brig for liberating some documents for the American people.
And so I think Snowden is basically Ellsberg, his dream come true, exactly what he was asking for all this time was his time for some of you people in positions of authority to choose whose side are you on the people and their bill of rights or the particular politicians and appointees who you happen to serve under, which are, you know, sort of beside the point when it comes down to it.
Yeah, absolutely.
You know, Dan Ellsberg wrote a great blog post for us, actually, just last week, talking about the difference between the contract you sign, the secrecy contract you sign when you when you start working with classified information and the oath of office you take to uphold and defend the Constitution.
And really, that oath, as Ellsberg stated, you know, should really overtake any contract that you sign to protect secrets, even though secrets end up, you know, trying to hide wrongdoing or corruption or lawbreaking.
And that's exactly, you know, how Ellsberg reacted back in the late 60s and early 70s when he saw what was happening with the Vietnam War and leaking the Pentagon Papers.
And that's what he sees in Edward Snowden, what Snowden has done six months ago to leak this surveillance information to U.S. journalists.
All right.
Now, talk about SecureDrop, because unfortunately, it seems like, of course, you know, the advent of the characters of Bradley, Chelsea Manning and Edward Snowden on the scene, they sort of they make it seem like you got to sacrifice everything to do what they did.
But in fact, Chelsea Manning did not have to blab to Adrian Lambeau, the rat.
And Edward Snowden, he may not have gotten away with it.
They may have figured out who it was and busted him.
Maybe he could have found a way around that.
But he deliberately chose to come forward to Greenwald and to Poitras in order to explain why he did what he did in anticipation of the smear job, that they would try to accuse him of treason or whatever, that he wanted to to state from the outset why it was that he leaked what he leaked.
But on the other hand, there are millions, well, at least hundreds of thousands of government employees with access to secrets that should not be secrets because they're, you know, what they call embarrassing, what if a civilian did, it would be called criminal behavior on the part of the government that the American people have the right to know about.
And those people can provide those documents either to Assange and WikiLeaks or to other organizations without getting themselves in trouble and, you know, having to spend 35 years in the brig or anything else like that.
So when you talk a little bit about how, no, really, we can protect your identity.
Go ahead and leak.
Sure.
Well, you know, as you kind of just described, there's there's been this crackdown on whistleblowers for the past six years.
You know, the Obama administration has unfortunately gone back on the president's campaign promises from 2008 and instead of protecting whistleblowers, has prosecuted more under the Espionage Act than all other administrations combined, which is just a huge number.
And so, you know, for decades, reporters were able to protect their sources from prosecution by, you know, even threatening to go to jail or going to jail rather than testify against them in court.
Unfortunately, the government has learned in the past few years that they actually don't need reporters to testify in front of sources anymore.
So they get them, they subpoena their email records and their records, and the journalists won't even know that this is happening until it's too late.
And they'll be able to get their sources that way.
And so we need to really, we wanted to develop a new system that will allow news organizations to better care for their sources and journalist communications.
And that's what SecureDrop is.
Basically, it's an open source, anonymous whistleblower submission system that any news organization can install.
And it basically just acts as a two-way communication system, which, you know, if the source documents they want to get the journalist, they can sign up through Tor, which is a web browser that's like Firefox or Google's Chrome, but it anonymizes your web traffic.
You can encrypt your file, send it to the journalist where it will sit encrypted where no one can get it until the journalist downloads it, and then they can go ahead and get information from you with sometimes even potentially not even knowing identity of their own source.
And even if they do know the identity, this information will be easily, you know, we don't log metadata, you know, we make sure that all this information is deleted very quickly so that, you know, the worst case scenario, the government's not going to be able to subpoena any third party.
And if they subpoena the journalism organization, they're going to have a huge fight on their hands.
And so hopefully we can kind of, you know, take the next step to protecting the communications between sources and journalists where we haven't really been before.
Right.
Okay.
Now, I saw where Glenn Greenwald gave a speech to the Hackers Convention there, and he said, you know what?
Legislation?
Nah.
You know, keep your Dianne Feinstein.
And courts?
You know, if we're real lucky, maybe the courts will rule in our favor a little bit, but what humanity really needs is for these, you know, level 20 tech geniuses out there to really get cracking on building a secure Internet for everyone that the National Security Agency is helpless against.
So that's really the way to fight back here.
Do you think that that's really possible?
Do you agree with that, that that's really the only hope we have, as opposed to, again, appealing to the Feinsteins of the Congress to help us?
Well, I definitely think that Congress may actually be willing to make some changes right now because they've seen the outrage in their voters and they realize their job may be on the line.
You know, there are a lot of bills out there besides Feinstein's.
Hers is actually horrible, but there are others that will actually make some real significant change.
We probably won't be able to get all the way there without some technology, or help from technology.
And so, you know, making a whole Internet-resistant, NSA-resistant Internet probably isn't feasible in the short term.
But there are many simple things companies can do to make communications with people more secure.
And, you know, we've been, a lot of groups like EFF have been calling on companies to do this for years, and finally now they're starting to do so.
And we're also going to see, you know, there's all sorts of privacy businesses that are sprouting up, you know, promising that's exactly the reason why they started was to protect people's privacy.
And so, you know, hopefully, you know, as the months and years go on, we'll be able to better protect our communications, both technologically and with the law.
Now what do you think that Obama's going to do?
Everybody on cable TV news, anyway, is all amped up about this speech that he's giving tomorrow.
But this is going to be kind of minimal concessions, or he's going to pass the buck to the Hill, or what?
Yeah, I mean, from everything we've heard, it sounds like they're going to be very modest watered-down recommendations.
And remember, he was working from recommendations from the Presidential Review Panel that were already watered-down.
So these potentially could be almost nothing.
And, you know, we're going to have to wait and hear what he says.
You know, he could surprise us, but that would be a real disappointment.
It sounds like he may pass the buck to Congress.
And, you know, I think it's important to point out, it doesn't matter necessarily, or, you know, it's not the endgame, what President Obama says.
Congress can pass laws that are much more stringent than what Obama wants, and he may be pressured into signing them, or Congress can potentially override his veto.
So, you know, no matter what happens tomorrow, it's not the end of the road, or it's not the maximum we may be able to get.
Right.
Well, and it's important to keep up the fight on all fronts, if only for the combined publicity of all the different fights going on all across the board.
And I really, I don't know if you guys are paying much attention to the Tenther movement and what they're doing to try to nullify the NSA spying on the state level, but I think that's great grounds for great controversy and, you know, big fights over the Supremacy Clause and the Kentucky Resolutions and all kinds of great stuff.
So, you know, anyway, it's going to take a consistent effort, a very broad-based effort where everybody figures out where they have a little bit of influence and see what they can do to play their role, you know.
But now, I'm sorry, we've got to hold it here, but we're talking with Trevor Tim from the Freedom of the Press Foundation.
And when we get back, we've got quite a few more things to cover, including a possible Snowden defense in court, were he ever to come home.
And also, I want to catch up on the latest revelations, don't you?
This is Trevor Tim from PressFreedomFoundation.org.
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Alright, you guys, welcome back to The Thing Here.
I'm Scott Horton.
This is my show, The Scott Horton Show.
Somebody said, man, you talk too fast on those commercials.
And I says, yeah, but I gotta fit everything in 30 seconds.
And I don't like cutting stuff.
And why'd that cut off so fast?
This is supposed to be the long version.
Sorry.
I will try to slow it down.
We're talking with Trevor Tim from the Freedom of the Press Foundation.
And the website is PressFreedomFoundation.org.
And you wrote this great thing that I wish I could hit everyone on TV news in the face with.
And it was this article about how if Ed Snowden came to Corsair, you know, was renditioned somehow or voluntarily flew home and surrendered himself for prosecution, assuming he even got a trial in a civilian federal courtroom instead of the Guantanamo treatment.
You wrote about what his likely defense would be in the face of all those calling him a coward and saying he fled to Russia, ignoring the fact, and especially the right-wingers, ignoring the fact that their political enemy, Barack Obama, was the one who exiled him to Russia and left him stranded in Russia.
It wasn't Edward Snowden's choice to go there.
But anyway, they say, if he's a real man and if what he did is really the right thing, then why doesn't he come home and argue that in court, Trevor?
Yeah, I mean, you know, we've been hearing this over and over again.
It's the number one talking point.
Every Sunday show, even people who are critics of the surveillance are saying, well, if Edward Snowden is really whistleblower, then he'll come home and make his case to a jury.
But contrary to popular belief, he actually can't make his case to the jury.
The way that espionage prosecutions work against leakers are just incredibly unfair, inherently unfair.
Judges in all of the cases so far have ruled that the leakers cannot tell the jury their intent.
So Snowden will not be able to tell the jury that he did this to inform the American public because he believed that laws in the Constitution were being broken, which is a huge, huge difference than a spy selling information to a foreign government and keeping it secret.
This was him trying to uphold the Constitution, not stab his country in the back.
And unfortunately, he wouldn't be able to tell a jury this information.
The judge would rule it inadmissible.
The same thing goes for the damage or lack of damage these leaks have caused.
The administration hasn't come out with a shred of evidence that shows that this harms national security.
Yet the defense wouldn't be able to even tell the jury that.
They wouldn't be able to bring up whether or not the country was harmed by the leaks.
The same thing goes for the benefits of the leaks.
He wouldn't be able to talk about the great debate that Edward Snowden has sparked, that we're on the verge of major reform in the NSA and intelligence agencies.
None of this information would be available to the jury.
And so, basically, both of his hands would be tied behind his back, and he would have no way of getting a fair trial.
It would be much different for Snowden if he could come back and tell the jury these things and have the jury ultimately decide.
But unfortunately, that's just not the case.
Yeah, that would be the movie, where the judge says, oh, I'll allow it, and the guy actually gets to put on a defense.
In other words, what you're saying is, they would narrow it down.
And anybody, I think, ought to be able to see this.
I mean, come on.
They would narrow the question to, did he walk out of the place with the stuff?
That's the only question you're allowed to consider, ladies and gentlemen of the jury.
And so, yes, he did, and so lock him up and throw away the key.
You know, come on.
And it seems like anybody could figure that out, too, even if they hadn't read your article along those lines.
But still, it just, you know, it's like blood on his hands about Julian Assange.
They just say it over and over again, and you're supposed to believe it, like the surge worked or whatever nonsense, you know?
Right, you know, I think there is a common misconception because people think that, you know, he'll be afforded all of his rights.
And when we, you know, watch movies, like you say, about the courtroom where the defense is basically able to tell its side of the story, you know, we assume that that's the case.
And in most crimes, or with most alleged crimes, or at least it is, you know, the criminal is often telling the jury his or her intent if they're admitting to it.
But here, it's just completely different.
The Espionage Act is written so broadly and vaguely that it doesn't leave them any room to tell the jury what you would expect and common sense would tell you that they should be able to.
It's just bizarre.
Yeah, well, and especially when common sense would tell anyone in this country, any civilian of any description, that espionage is espionage.
And whistleblowing, even if you disagree with it, even if you say, oh, come on, NSA spying?
I love NSA spying!
You shouldn't break your secrecy agreement over some measly NSA spying, even if that's your opinion.
It still doesn't make it espionage.
It still is attempted whistleblowing on an issue that you don't care about, maybe.
But it's still at least attempted whistleblowing, and so maybe he's violating his secrecy agreement, but that is not espionage.
You know, it's a lie is what it is to call it espionage at all.
Exactly.
They're trying to equate whistleblowers and sources to journalists with spies, and it's very disingenuous.
Not only is it disingenuous, it puts the defendant at a huge disadvantage because they can't actually argue that what they did was for the public good or that they didn't cause any harm.
It's just inherently unfair, and that's the primary reason why I'm sure Snowden doesn't want to come back to the U.S.
At least if he had a shot at a fair trial, I'm sure he might consider it, but it's just impossible the way that the justice system works.
Yeah, I saw where Daniel Ellsberg had said, hey, back when, and they were threatening him with life in prison, it was only because Nixon had put a hit out on him and tried to bribe the judge that the whole thing just got canceled.
Right, it's important to remember that Ellsberg was not exonerated.
Yeah, but he was out on bail.
His point was, hey, I paid $50,000 or whatever it was on bail, but then he had months to sit there and hold impromptu press conferences on the courthouse steps and tell his side of the story and go on the Sideburns Guy show and everything else, you know?
Yeah, absolutely.
That's another difference between now and then is that no way would Edward Snowden be able to talk to the media during the trial.
He would almost certainly not be allowed out on bail.
And he would be held incommunicado through the whole thing, and so we would only be hearing the government side of the story.
So just yet another reason why things have changed to the point where it's hard for him to get a fair trial in the U.S.
All right, now, so here's the thing.
On TV, they say, look, there's very little abuse.
Yeah, there's some guys were spying on their ex-girlfriends and that kind of thing, and yeah, they are vacuuming up everything, but they really aren't looking at it all day, and they really are just trying to protect us from the bad guys.
And so you just don't understand, and you're just going off half-cocked.
So, Trevor, don't you ever stop and wonder, wait a minute, maybe I'm wrong, and these are my benevolent protectors, and I'm being a spoiled brat?
Well, first of all, even if we 100% trust President Obama, and he is our benevolent protector, he is not emperor for life.
In another couple years, there will be another president.
There is a 50% chance that he or she will be of another party, of people that you do not agree with, and they will have these same powers and they will use the same secrecy, but they may actually decide that they want to use these powers differently because there's no oversight and there's no way for them to get caught.
We could see the technology is in place so we can see another situation like Richard Nixon and J. Edgar Hoover, which happened in the 60s and 70s where they were spying on political protesters and civil rights leaders and musicians and senators.
So that's what we want to prevent here.
But we should realize that there has been abuse already.
The FISA Court has said that there were systematic violations of privacy rules for five years, and nothing was ever done to shut down the program.
The NSA claims those problems are fixed, but we have no idea because everything is secret.
So this is exactly why we need oversight.
It has nothing to do with who is in the office right now and whether or not you trust him or her.
These are restraints that need to be put on any democracy, any leader in a democratic country to make sure those powers can't be abused in the future.
I saw one that was breaking, I guess today or yesterday, was about text messages.
Was that not already part, I guess that's separate and more substantive than the metadata?
Is that virtually all text messages, or do you know?
Yeah, there was a report in The Guardian that just came out right before the show started about how the NSA was backing up 200 million text messages a day from all over the world.
I don't know many details at this point, but it's clear from the article that it was untargeted.
They're not just targeting terrorists.
It's basically just a huge vacuum that scoops up all these text messages.
And then what are some of the other recent developments?
Because what happens is it's now been half a year, and pretty much every one of these stories that comes out is a pretty big one in and of itself, but then they start to sort of seem old hat a little bit.
I mean, shock us a little bit about the extent to which this has gone that we didn't know before.
Well, this is actually one of the first stories in the last couple weeks involving the NSA.
There was one over Christmas break where Dirk Spiegel published a catalog of NSA vulnerabilities and all sorts of products like the iPhone and different types of computers.
An official said a few months ago that they think there's enough material for two years here for the journal to keep publishing.
So I think we're still at the beginning of this scandal.
Hey, and do we know, tell me real fast, do we know that they're not recording all the audio or that it just hadn't broken yet?
Well, they do collect a lot of the information incidentally, so even if they aren't doing it directly, it's quite possible that especially...
That's Trevor Timm, thanks.
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