07/10/13 – Trevor Timm – The Scott Horton Show

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Our next guest is Trevor Tim from the Electronic Frontier Foundation at EFF.org.
Hey, how are you doing, Trevor?
Good.
How about you?
I'm doing real good.
And you must be doing real good because the judge said something about the state secrets privilege isn't going to keep you out of court.
What?
Yeah, finally.
You know, after six years, we've been suing the NSA for their warrantless surveillance program from back in the Bush years.
Obviously, it's been continuing under Obama, as the recent disclosures in the Guardian and Washington Post have confirmed.
But the government has been trying to delay our lawsuit for years, basically using all sorts of procedural maneuvers to make sure that the government or that the judge never actually hears the evidence.
The latest procedure they used is the state secrets privilege, which is very controversial in the sense that the government is basically arguing that even if all of our allegations about unconstitutional behavior are true, that the judge should dismiss the case before evidence is even heard because it touches on sensitive national security topics.
Now, of course, like I just mentioned, you know, this has been in the news in the past month, but it's also been in the news since 2005.
And we have hundreds of pages of public evidence that explains how these programs work and have existed for years, yet the government has still been trying to use this argument.
Thankfully, the judge just issued a ruling this week saying that the state secrets privilege does not apply.
They did dismiss a few of our claims under other procedural maneuvers, but the major claims about violating the Constitution under the First and Fourth Amendment survive.
And now the case is going to go forward and the government is going to have to hopefully actually, you know, admit or deny that these things are happening.
Well, that's all very interesting.
I mean, this whole thing has been it's kind of a running farce for those of us who've paid attention to this story over the years, as the the Obama administration has claimed in in the wake of the Snowden revelations that, well, this is all under judicial checks and balances.
So it's fine when all they mean is the FISA court, not a real court.
And no real court has had the chance to choose or to decide whether this is constitutional or not.
We all know that the Congress passed a law and a couple of them and that the administration has secret memos interpreting those laws.
But that doesn't mean that a federal court has that or much less the Supreme Court or anything has ever said that it's constitutional.
And obviously, anyone who's above fourth grade literate and has ever looked at the Bill of Rights could tell you that it's not.
Yeah, exactly.
You know, this has been the most frustrating part of the president saying that he wants a debate on this subject and then saying, well, courts have approved this.
Well, not federal public courts, as we know them, as everybody knows them.
You know, we've actually been trying to get the courts to rule on this.
And that's really all we're asking for is for the evidence to be presented and for the judge to rule one way or another.
If it turns out that all of the judges in the district court and the appeals court and the Supreme Court say this is constitutional, well, then it's actually been debated.
But that's not actually what's happened.
What's happened is it's only been approved in these secret FISA courts where, you know, the judges are not appointed by, you know, elected members of the Senate like federal judges are.
They're appointed by the Chief Justice Roberts of the Supreme Court, who's obviously an unelected official.
He has a lifetime appointment to appoint FISA judges for the coming decades.
And these judges, of course, meet in complete secrecy.
When they hear arguments from the government about why they should be able to search whatever they want to search, there is no opposing party to argue the opposite side like there is in regular federal court, too.
So the justices only ever hear one side of the argument, which is always the side that wants to conduct more surveillance.
And when they issue these opinions, they are, of course, classified, some of the most highly classified documents in the government.
And so laws that affect pretty much everyone and decisions that affect pretty much everyone only are read by a select few people, probably no more than a dozen or two dozen, yet they apply to everyone.
So, you know, it's a system of, you know, pretty much the opposite of checks and balances where the government has the upper hand in every situation and it's impossible for the citizens to either appeal these decisions or have any say in them whatsoever.
So, you know, hopefully this this state secrets ruling will be the first step in making sure that the public gets a say in how these laws are implemented.
OK, now, I read a funny thing here and I didn't really understand.
In fact, I didn't even get a chance to finish reading the article.
But it was the thing and Wired said that actually they did not quite say you can go on ahead, but they did say they did not give you the green light is the words here.
But they did strike down the state secrets privilege exemption.
So is there a separate argument that they the court's yet to rule on then?
Well, yeah.
So, I mean, there's a lot yet to be decided, and this is kind of just a small step.
But basically what the government was arguing, they filed a summary judgment motion, which means basically that they wanted the court to dismiss the case right then and there to say the state secrets privilege prevents this case from ever going forward.
And the government rejected that argument, mostly because the government has been making claims in the media and in Congress about how these programs work.
And so, you know, it's not necessarily the fact that, you know, in a couple of months that we'll be presenting evidence before the judge, you know, we actually have a conference with him in August and he's going to we're going to talk about how this case goes forward.
We still have to file a bunch of briefs explaining our different arguments.
And the government has to file more briefs talking about how these recent disclosures affect their arguments.
So, you know, it was it was definitely a small step in the right direction, though it wasn't, you know, a complete victory, meaning that, you know, this is all going to be solved within six months.
It's still a long road, but it's a road that, you know, we finally have moved in the right direction on.
Yeah.
You know, it's such a double edged sword, though, to I've I've been especially since, you know, the 9-11 era, the Bush Obama era.
I'm always kind of half scared to death when the courts actually do agree to hear these cases because when they rule wrong, oh, no.
So like, you know, we just had them say, for example, that being silent in the presence of a cop is not the same as invoking your Fifth Amendment right.
You've got to tell them I'm invoking my Fifth Amendment right to not tell you things and then start not telling them things before it counts.
And this kind of stuff where and that's just one of a million examples.
And in fact, probably, you know, a lot worse ones.
And on topic, too, when it comes to violations of the Fourth Amendment, you know, they they really can just aid and abet the executive and enshrine these sort of horrors in in permanent law.
You know, if the Supreme Court says it's OK, then I guess it is.
Yeah, exactly.
But unfortunately, you know, not to defend this court on their Fourth Amendment rulings.
I mean, they've made they've made a couple of good ones, but they've also made a lot of horrendous ones.
But the fact of the matter is that the government is preventing the Supreme Court from even deciding anything.
And because they're preventing them from deciding anything, the government thinks they can basically do whatever they want.
So, you know, if if it comes to the to the point where the Supreme Court is actually hearing these cases and rules against us, you know, that would obviously be horrible.
But at least it would be public law, whereas right now we have secret law where the government has to do what it wants and we have no idea what the rules are.
Right.
And, you know, there's a little bit of comedy to that, too, that they have secret laws that, you know, when senators say things like, well, I can't tell you exactly what it says, but I can tell you that there's a secret interpretation of this law.
That means that the government reads it entirely different than someone who's just, you know, acquainted with the English language might read it or even an expert in legalese might read it.
Yeah, exactly.
I mean, you know, Senators Ron Wyatt and Mark Udall have been screaming from the rooftops for the last two or three years that the government has a secret interpretation of the Patriot Act.
And we in Congress actually have a separate lawsuit where we've been trying to get that secret interpretation through the Freedom of Information Act.
And before these recent disclosures in The Guardian and Washington Post, the government literally not only would they not give us the interpretation, they wouldn't even tell us how many pages their interpretation was.
So, you know, it's this absurd secrecy that has permeated through the government in the last decade, you know, spanning administrations, which is really a problem when, you know, we're talking about public laws passed by Congress that are supposed to be written in the public's name.
And yet the public has no idea what these laws actually mean, because there is the plain meaning on one hand and then the government secret interpretation on the other.
Right.
Well, it's so obvious that the reason that it's secret is because they're lying and they're violating our rights and they know it.
And it's not that they feel guilty, but they know that they are guilty and they're afraid that some magic will happen and they could be held accountable in some alternate universe or something.
Right.
As soon as the Verizon court order came out, which basically laid out that the government's secret interpretation of the Patriot Act meant that the word relevant to an investigation meant that they can collect information on literally every American.
As soon as that came out, the author of the Patriot Act, which is a Republican, Jim Sensenbrenner, who is absolutely not a civil libertarian in any way, said basically the NSA was violating the law and that and that this actually the law actually required them to identify individual people that are involved in a specific investigation and that, you know, this is the type of argument that we've made in court.
If this was a public case and there was an opposing counsel.
But here we have none of that.
We have a secret court issuing rulings where it's only the government arguing.
And this is the situation we get.
You know, there's a lot of things that we would like to see happen and reforms that we would like to see.
But the very lowest bar is that, you know, we should, you know, as the American people should know what public laws mean.
And that's that's not really a high bar at all.
And it's one that we should expect in any democracy.
OK, now I want to ask you some things all about some of the NSA revelations and all that.
But first, I want to turn to this piece in The Daily Beast, WikiLeaks Money Trail, how it's raising money for Snowden and Assange.
And you're in here because your other organization, you work for EFF, but you're also the executive director of the Freedom of the Press Foundation.
And you guys have basically figured out an end run around the State Department engineered financial blockade of WikiLeaks, correct?
Yeah, exactly.
I mean, the you know, the government has or it's actually not even the government.
It was a couple of congressmen who basically decided to take it upon themselves to privately pressure these payment providers like Visa, MasterCard and PayPal to cut WikiLeaks off, even though WikiLeaks had never violated any law by publishing the State Department cables.
And they were doing basically something that newspapers do all the time, which is publish classified information in the public interest.
Well, pardon me for interrupting, but the only reason I said State Department there was I believe, just from memory, that the PayPal CEO said the State Department told us that they're breaking the law.
And so we went ahead.
Yeah, they like read.
It's unclear exactly if the State Department contacted them or not.
It's possible that they could have the payment.
The PayPal CEO said that they had read the public letter that the State Department had sent WikiLeaks.
And the letter was written in a way to make it seem like WikiLeaks was breaking the law.
But in fact, what the letter was saying was that that the leaker was breaking the law.
And it was written in such a weaselly way that that somebody who wasn't paying close attention might think that that's what the State Department was saying.
But, you know, the State Department probably knew in the end that actually what WikiLeaks was doing was was not illegal because The New York Times does it all the time.
But regardless, you know, the the payment processors cut WikiLeaks off.
And we thought this was, you know, a horrible precedent, given that, you know, any time now that the government doesn't like what somebody is printing that, you know, they know they can't go to court to get this cut off because it would be a violation of the First Amendment.
So they would just unofficially pressure these companies to do it behind closed doors.
And so we wanted to prevent that in the future.
And so we set up the Freedom of the Press Foundation to take donations to WikiLeaks and a whole host of other innovative journalism organizations like them that are that are pointing out these government secrecy problems and reporting on national security.
So we take donations to WikiLeaks through Visa, MasterCard and PayPal and pass it on to them.
And so far, it's been a great success.
You know, we've raised well over $100,000 for WikiLeaks and well over $300,000 for other organizations.
And so hopefully if this, you know, if this tactic by the government is ever tried again, we'll be there to to come rescue another media organization right away.
And now I want to read the what's really a correction.
They don't call it that editor's note at the end of this article here just because it gets right to an important point anyway.
Never mind how wrong they got it in the first place.
It says the Freedom of the Press Foundation is a financial sponsor of WikiLeaks, not a fundraising arm, as they had originally said.
You guys stand completely alone and this is just one of your projects here.
I want to talk about another here in just a moment.
And it says here money given to the foundation can be donated to the institution as a whole or directed to WikiLeaks specifically, which is nice, sort of like people can donate to me tax free by way of giving it to antiwar.com first and putting my name on it.
So by the way, audience.
But anyway, so yeah, that's an important point to make here.
And can you tell us how much money you've been able to help raise for WikiLeaks since you started doing this?
Yeah, I think we've raised the first but we've done two campaigns so far.
The first campaign we raised about $190,000, about half of that was for WikiLeaks.
The second campaign we raised over $100,000, I think 40% of that was for WikiLeaks.
So around in between $130,000 and $150,000 so far.
And you know, that's more than they made all of last year.
So it's been a huge success.
And yeah, the Daily Beast article, for some reason, there's three paragraphs about us and every single sentence had an error in it.
So I'm glad to see that they they've corrected it.
You know, you can also go, I was gonna say you can donate to WikiLeaks through our website, which is PressFreedomFoundation.org.
But you can also donate to a host of other great journalism organizations like Bureau of Investigative Journalism, which is doing a, you know, as people on the ground in Pakistan and Yemen reporting on US drone strikes, you know, Truthout, who's sending a reporter to Guantanamo Bay, Center for Public Integrity, who's doing a great report, investigation on Defense Department spending and, and mapping out how money goes from lobbyists to congressmen to the Defense Department into weapons systems.
So you know, hopefully in the next month, we're gonna have a brand new campaign with with three or four new organizations that are doing similar great work.
Well, that sounds great.
And I wanted to point out here, I just think it's cool.
It says here that the largest donation that the I mean, assuming that this paragraph is correct, the largest donation that the Bradley Manning Defense Fund has gotten was $75,000 from a Ron Paul supporter, essentially, as long as everybody's smearing the Pauls by association this week, go ahead and accuse them of being associated with people who support the American hero Bradley Manning, which is something everybody can hold their head high about.
Anyway, so and then the other thing that I was hoping that you could tell me about here is this.
Well, for starters, it would be about Oh, no, wait, one more thing about this would be the money you guys are raising for the transcripts for the Manning trial.
Have you raised enough to cover through the end of the trial yet for that?
Yeah, it kind of depends on how long the trial goes.
So if the defense argues for as long as the prosecution does, then actually, we should have a good amount just for a little bit of background.
What happened was that the government has decided that they're not actually going to release transcripts of the Bradley Manning trial, even though you know it and any basic federal civilian trial in the US transcripts are handed out the same day.
So all media organizations can report on the trial.
And in addition, they also denied over 200 organization press press passes.
So without transcripts and without a press pass, it's impossible for a lot of organizations to report on the trial.
So what we did was we actually decided to hire professional stenographers to sit in the media room and act as kind of these pool reporters for all of these other media organizations in the public.
And so what we're doing on our website is instead of raising money directly for journalism organizations this time around, we're raising money for these professional stenographers.
Now, unfortunately, they're incredibly expensive, you know, it costs upwards of $3,000 a day to turn around these transcripts and in, you know, 12 hours.
So we're trying to raise about $100,000 we're actually almost to our goal, we're at $97,000.
So it's been a great response from everybody.
If you want to contribute to that fund, just go to pressfreedomfoundation.org.
And it's right there.
But it's been, you know, hugely valuable for anybody who wants to cover the trial who can't actually get in themselves.
And hopefully, you know, we're trying just a little more sunlight on a on a court proceedings that have been shrouded in secrecy, much like the rest of the government's national security apparatus.
No, not a little more.
I mean, this is the history of the world being written here, man, and you're making sure that it's being written down and it's the most important thing ever, ever.
So stop playing it down.
Well, I appreciate it.
And yeah, you know, this is one of the most important trials as far as leaks go in the last four years since Daniel Ellsberg.
And it seems like, you know, the public gets very little information on it.
And we wanted to make sure that it was all on paper because the government has been making just absurd, ridiculous arguments claiming that Bradley Manning is aiding the enemy by publishing information on the Internet, by working with news agencies there.
You know, he's akin to a traitor, which is just absurd and has huge implications for future whistleblowers and military men and women who want to exercise their First Amendment rights, not even talking about classified information.
And so we wanted to make sure that the government's arguments were on paper and everybody can see exactly what they're arguing.
So hopefully, you know, they can't just pull the wool over everybody's eyes and charge them with these crimes without being held accountable.
Right.
Well, and also so we can all get a good gut laugh at their ridiculous arguments that the prosecution has been basically blowing themselves up this entire time.
Figuratively speaking, don't anyone tap me and misinterpret what I'm saying.
But just of course, the judge is going to do what she's supposed to do anyway from her commander in chief's point of view.
But the prosecution's case is absolutely laughable for anybody who wants a good chuckle from their gut.
Now, I got to switch gears here real quick, Trevor, to the PRISM thing.
Now, everybody's saying, Glenn Greenwald, you don't know what you're talking about.
And Ed Snowden, he's a liar.
And he probably works for the Russians and who knows what kind of innuendos all the time.
But so what I want, hopefully an OK conflict of interest.
You and Greenwald are on this press freedom thing all the time together and whatever.
But whatever, you're a computer genius.
Tell me from the computer genius point of view only, what exactly is PRISM?
Does it provide direct access?
Snowden says he could watch me typing my Facebook post as I type it or something very close to that.
And all the naysayers say, no, it's just a FTP Dropbox thing.
It doesn't even mean that the government has free reign inside the private company's computers, only inside this little lockbox.
They have to ask the company employees to go get them whatever it is that they want.
And as far as I can tell, at least the way I just constructed it, only one of those things, only one of those ways of describing it can be true.
So please help make me not wrong anymore.
Yeah, you know, it's been really confusing.
And the problem is that it's really confusing because there's so much secrecy around it, so much absurd secrecy, given the fact that, again, this is a public law and we should be able to know the scope of the government surveillance capabilities and how they affect innocent Americans.
So basically the way that I understand it is, you know, the slide said that the government gets direct access and the companies are saying that actually, no, the NSA doesn't get direct access.
But the way it works is from an NSA analyst point of view, from the person who is probably making these slides, it's basically like they're getting direct access.
So the government hands out broad surveillance orders, they hand them to these companies.
The companies then have a certain amount of users, a subset of data, which they then feed into this system that we don't exactly know how it works, but probably is some sort of dropbox which they continually feed in a certain set of data into, basically in real time.
And so what the NSA analysts can do is search this subset of data without any sort of additional oversight from, you know, Facebook or Google.
So, for example, if the the court order says that they want all of the communications coming into and out of from the United States to Yemen, for example.
So they would have this huge subset of data, which then they can go ahead and search for individuals' profiles or email addresses or keywords and what have you within this data set.
So the NSA, from the NSA's perspective, it's direct access.
But from the company's perspective, it may not seem that way.
All right.
Well, I guess I'm still confused.
Yeah, it's pretty confusing.
But the whole point is that the NSA is getting broad access to foreigners' communications who are talking with Americans and the Americans, the NSA is allowed under their minimization rules, they call them, to search American communications and keep them for long periods of time and hand them off to the FBI for a whole host of reasons.
And they never originally got these communications through a regular warrant like is required by the Fourth Amendment.
And that's the real problem here.
And now, have any of the revelations so far been, you know, made you think, wow, that's even worse than I thought it was?
Or it's all just confirmation of your worst guesses?
I mean, it's a lot of confirmation about what we have been arguing, but I can't, you know, emphasize enough how important that confirmation is because...
Right.
I don't mean to play it down like, oh, we already knew that or anything like that.
It is extremely important.
Yeah.
I mean, having the government documents there means the government basically is forced to admit everything before they could just claim that they, you know, could sidestep, say they didn't confirm or deny or deny outright.
And obviously the information has shown that members of the administration have lied to Congress about this.
But, you know, the phone records thing is pretty extraordinary because not only does that cover every American call going in and out of the country, which is something that the FISA Amendments Act basically allowed and that we had suspected that they were doing, but it targets every domestic call, too.
So, you know, if you're calling down, it doesn't matter if you're calling down the street or across the world, the NSA has a collection of your phone records.
And, you know, that's extremely dangerous considering the NSA is a foreign or, you know, is an intelligence agency that's supposed to be aimed at foreign places, not domestically.
And here it's clear they have a giant database of just purely American information, which, you know, should be against the law.
Yeah.
Well, and, you know, I, for one, and I don't know everything about it, obviously, but it seems to me like all this network science is pseudoscience, kind of ridiculous mechanical conspiracy theory sort of nonsense.
I mean, if you took the people in my cell phone and multiplied it by the people in your cell phone and then did a spreadsheet about how many of those people, just regular civilians who aren't even interested in politics or know anything about this stuff.
And then there they are with their name right next to former CIA guys in my phone and and foreign computer geniuses in your phone.
And all of a sudden, look at who all is tied together.
My skater buddies are part of some conspiracy with Trevor Tim and Glenn Greenwald and Ed Snowden and God knows what.
Right.
And it's all nonsense.
But that's what the computer says.
Just look at the pattern, boss.
Right, exactly.
The idea that the the NSA can look, they call it two hops, two hops away from a phone call.
So somebody calls somebody and that somebody calls somebody else.
And you can basically get to pretty much anybody in the world that way.
It's amazing how quickly and exponentially the the map of your context increases when you go out that fast.
You know, just imagine what a journalist phone book looks like, you know, somebody who covers national security with two hops away.
They would be they would be connected to virtually every terrorist in the country.
Yeah.
And you and me are the speaker of the house, too.
All right.
We got to go.
Thanks so much for your time, Trevor.
I really appreciate you come back on the show.
Well, thanks a lot.
Trevor Tim, everybody from EFF dot org.
Hey, you own a business.
Maybe you should consider advertising on the show.
See if we can make a little bit of money.
My email address is Scott at Scott Horton dot org.
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