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Scott is joined by Daniel McAdams to talk about the war in Ukraine. They start with the incident on Tuesday when a missile crossed into Poland, a NATO country, and killed two people on a farm. That leads to a discussion about the possibility of negotiations between Kyiv and Moscow. McAdams argues against the idea that Republicans are about to turn against the provision of military support for Ukraine. Finally, they touch on the FTX situation. 

Discussed on the show:

• “WaPo Neocon Josh Rogin: Republicans Responsible for Ukraine Loss” (Antiwar.com)
• “Game On” (Harpers) 

Daniel McAdams is the executive director of the Ron Paul Institute for Peace and Prosperity and the co-host of the Ron Paul Liberty Report. Follow him on Twitter @DanielLMcAdams and read all of his work over at Antiwar.com.

This episode of the Scott Horton Show is sponsored by: The War State and Why The Vietnam War?, by Mike Swanson; Tom Woods’ Liberty Classroom; ExpandDesigns.com/Scott; and Thc Hemp Spot.

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Trevor Timm of the Electronic Frontier Foundation discusses the recent leaks revealing wholesale NSA surveillance of Americans through Verizon phone logs and nine major internet companies; the NSA’s “51%” rule for determining whether a call is foreign and thus suitable for monitoring; and how the government twists the definition of words to avoid constitutional violations.

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Blogger Marcy Wheeler discusses how White House narratives go largely unchallenged by journalists starved of information from government leakers; the favorable testimony of prosecution witnesses in Bradley Manning’s court martial; Glenn Greenwald’s scoop on the NSA’s collection of all Verizon customer call data; how Google, Microsoft, Apple, Facebook and other tech giants help the government spy on Americans; why individuals targeted by government spying can’t get standing to sue in court; and how the FBI is used as a front to evade NSA restrictions on domestic surveillance.

Scott Horton Interviews Marcy Wheeler
The Scott Horton Show
June 6, 2013

Transcript (page down for audio)

Scott Horton: All right, y’all, welcome back to the show. I’m Scott Horton. And yesterday technology and its glitches got the best of us and cut off the end of the Marcy Wheeler interview and we never got to finish. So, well, and then there’s huge breaking news right along Marcy Wheeler lines to discuss as well, so I’m very happy to welcome Marcy Wheeler, the emptywheel as she’s known in the blogosphere, emptywheel.net, back to the show. Welcome back, Marcy, how are you?

Marcy Wheeler: Good. Good to be back.

Scott Horton: Thank you very much for joining us again. Okay, so, first things first, let’s pick up where we left off yesterday. I asked you, so what effect is the Manning prosecution etcetera having on journalism, on journalists and on their sources, and you had something to say about that.

Marcy Wheeler: If I remember correctly, I was saying that I think there’s a number of really good investigative journalists, some of whom just aren’t doing much anymore, and if they are they’re not doing much on national security, others of which I think just have lost the degree to which they are getting sanctioned leaks and therefore they’re not as, they’re not as — as critical. They’re not thinking critically anymore, and as a result we’re getting narratives that make no sense about really fundamental stories, and that’s unfortunate.

Scott Horton: Can you give us some examples of what you’re thinking of there?

Marcy Wheeler: Well I mean like the drones, the drone stories. The administration has been on a year-long dog and pony show about how they’re conducting drone stories, and those started right after it broke that they were engaging in signature strikes in Yemen, and immediately after that there was a bunch of stories about how in fact, you know, there was a lot of control and they knew who they were targeting, and it clearly contradicted what we had just learned and yet that narrative has persisted all the way until today, all the way until two months ago when Jonathan Landay published, and NBC kind of republished what he had published two months ago, that the data show that’s not true. And so I mean it’s clear that Jonathan Landay, who of course is famous for having alternative sources who aren’t the top White House officials, it’s clear that there are still people out there leaking information, this Glenn Greenwald piece also shows that, but the narrative, the Obama administration I think has succeeded at presenting unquestioned narratives as well as anyone has since the Iraq war buildup. I think we’re seeing the same kind of unquestioning obedience to this White House narrative, and that’s really troubling.

Scott Horton: Mmhmm. Well and it’s a little bit understandable on the — well, I mean it’s understandable all the way around, I guess, if I put myself into the journalist’s shoes or in the leaker’s shoes in government. I mean they’re risking much more than before, but I guess it’s also even true just at the Chuck Todd level, right, which I use him as the example of the joke journalist, the anchors, you know, not real reporters, but like the White House press corps types. I keep reading their complaints that the Obama administration just hardly won’t give them any access whatsoever and so they have to just have the world’s worst suck-up contest to see if they can get, you know, two seconds, see if they can get one answer about anything. And so instead of rebelling against that and really fighting back and refusing, you know, standing together and refusing to go along with it and just demanding better access, they all engage in the suck-up contest.

Marcy Wheeler: Right, and I’m — you know, I made this point the other day. You hear a lot of journalists saying we need a better shield law, we need to tweak Branzburg, which is the Supreme Court precedent that governs press protecting their sources. You almost never hear journalists say we have to, you know, dramatically limit the Espionage Act so it’s not used to investigate Americans trying to inform Americans. We need to overturn this administration and the Bush administration’s interpretation of Navy vs. Egan — again, this is another Supreme Court precedent — because the government, both administrations have been using it to claim that the executive branch has unlimited ability to determine what is secret and what isn’t secret, and both of those laws are actually far more important than the journalist shield law in playing these information games. They also allow the government to engage in sanctioned leaks knowing they’re never going to be called on it. And that’s notable. Because I think if we were able to fix the Espionage Act, if we were able to limit the interpretation of Navy vs. Egan, then I think you would have — the government couldn’t use information for political gain the way they’re using it, or at least not to the same extent.

Scott Horton: Yeah, and the pushback from the press has been really minimal, even on the AP story where they’re criminalizing, they’re calling a reporter — oh, no, that was the Fox one, where they’re calling the reporter an unindicted co-conspirator basically in the case of investigating that leak. And along with the AP story which broke just before it, I’ve noticed on TV these people, the TV news anchors, they’re so used to siding with the government that even when they cover these stories they have to laugh and mock themselves for caring about it, and say, ‘Well, you know, we only care because we’re the media and it’s about us, and so, oh, gee, I guess we’re going to actually spend 30 seconds on this today, whereas if this was about anybody else of course we wouldn’t care, because it’s just our benevolent overlords taking care of us.’

Marcy Wheeler: Yeah. I mean, there’s a secrecy problem —

Scott Horton: What a strange attitude to see, you know, when their profession, their most important profession, is under attack like this.

Marcy Wheeler: Right. Right. Well, what their — yeah.

Scott Horton: It’s crazy. All right. So now back to the Manning thing for a minute here too, can you tell us what anybody learned from Adrian Lamo the Rat’s testimony or any of the other developments from the trial itself, anything important people need to know?

Marcy Wheeler: Yeah, the biggest important — I mean Lamo’s was just what we already knew. I think that the most interesting development, which was yesterday after we got cut off, that Manning’s supervisor in Iraq actually had really good things to say about him. She said he was very good at analysis. She said that he would be encouraged to do the kind of surfing that he was doing, that he, you know, that he was supposed to see, he was supposed to download the documents he is being accused of downloading illegally. So even the government’s own witnesses are I think questioning their case to a significant extent.

Scott Horton: So, wait, is that testimony contradicting his guilty plea then on that particular case of —

Marcy Wheeler: No. No.

Scott Horton: — whether he was supposed to download that or not?

Marcy Wheeler: No, it supports his limited guilty plea. It just, I mean what he basically said is he accessed some of this information, the government says no, he illegally accessed it, and what his supervisor said yesterday was no, in fact he had reason to download all of it. So —

Scott Horton: I see.

Marcy Wheeler: Remember —

Scott Horton: So that wasn’t one of the things he had pleaded guilty to. The only things he had pleaded guilty to was taking the documents from there.

Marcy Wheeler: Taking the documents without authorization. Yeah, I mean, so he pled to lesser charges on just about all the counts they want, and so that’s what we’re seeing is I think we’re actually seeing that — and we’ll see whether the government, whether they present a case, but you know I think the government is — there is reason to believe that the evidence presented, at least thus far, actually supports Manning’s version of what he did more than the government’s version of what he did.

Scott Horton: All right. And then so let’s change subjects here, and there’s a lot of them to cover. I almost wanted to start with the Google order first. Do you know about that one? They have been resisting the government’s demands that they turn over I believe vast tracts of data, and they’ve lost, at least on a pretty high level this week. No?

Marcy Wheeler: Yeah. Yeah.

Scott Horton: Can you explain a little better than me?

Marcy Wheeler: I don’t know. I mean it’s just another case of national security letters, the government requiring data in secret, and even in a circuit with a judge who had already said that they couldn’t get this information, judges are still upholding national security letters. But I think, I mean, I think we should actually jump ahead to the Verizon thing, because that —

Scott Horton: Sure, go ahead.

Marcy Wheeler: I mean, so what happened is Glenn Greenwald at The Guardian published a what’s called a Section 215 order, which we, you and I, have talked about a bajillion times, so your readers are way ahead of where everyone else is on this, your listeners. And what it showed is that the government, the FBI, came to the FISA court and said, ‘We want all of Verizon Network Business Services’ metadata for three months.’ And the FISA court said, ‘Great. Here you go. And deliver the data starting Monday or starting whenever to the NSA.’

And so what it shows is that claims that the government is doing dragnet service in fact are true and have long been true. And that the government is doing this via these orders — this one actually gets reviewed by the FISA court. I mean the reason I jumped ahead is because national security letters get reviewed by other judges, normal Article III judges, but over and over again what we’re seeing is the government is successfully collecting massive amounts of data on people who are completely innocent. And that’s what’s important about this Verizon order is that it collects all Verizon Business Services customers, all of them. And —

Scott Horton: Okay, now. And then —

Marcy Wheeler: Go ahead.

Scott Horton: There’s also even kind of a loophole thing where they’re calling it business, like it’s just, it’s like a takeoff on the Patriot Act, or the Know Your Customer provisions of financial institutions have a lower threshold for turning over data, but this isn’t about Verizon dealing with other businesses, this is about all of their customers.

Marcy Wheeler: Right. It’s a third party order, so what — and again, this is how, same with the national security letters, this is how the government is collecting all this information is they ask a private company for data they have on you and the private company is gagged from telling you, and therefore you can’t prove, you can’t challenge the order. And that’s how they’re doing it over and over and over again with all sorts of kinds of data.

Scott Horton: So what does this mean for the standing to sue that every Verizon customer in America is holding in their hand right now? Anything?

Marcy Wheeler: Well, that’s what I argued this morning. The government, both Holder and you know the White House and some members of Congress are saying, ‘Oh, we can’t discuss this in secret,’ and one of the things when you look at this order and, you know, even people who were trying to figure out, who assumed that it was tied to a specific investigation rather than just regularly collected dragnet, they had no clue who they were targeting, because you couldn’t have a clue who they’re targeting because everyone’s being collected. So in other words, these orders, it belies the claim that these needed to be secret in the first place, because if you’re collecting from everybody there is no plausible argument you can make that revealing that you’re collecting from everybody will tip off the terrorists.

Scott Horton: Right.

Marcy Wheeler: So, and I argued that the only reason they’ve been keeping it secret, and the only reason they’re going to refuse to acknowledge this even though they all but have, is because they want to prevent somebody from getting standing. In other words, they’re hoping that some judge will still rule that this does not give a Verizon Business Service customer standing to sue because Verizon is sharing its information with the government. And that itself ought to tell you the government doesn’t think this is legal. Because they have got, I mean for years, since 2004, since before, they have made every effort they could do to make sure these counterterrorism programs could never be reviewed in court. They did it — I mean this comes on the heels of the Clapper vs. Amnesty decision at the Supreme Court where, you know, a couple of justices said, ‘Oh, I think that you’re speculating that as a lawyer who represents terrorists they might be wiretapping your phones,’ and therefore they were thrown out. I think Verizon Business customers are going to have a better chance at proving that they’ve got standing, but people really need to understand that the trick the government has used consistently, and over and over and over again, is to deny people a review, a legal review of these programs by keeping things secret and therefore preventing any person from getting standing to be able to sue and challenge it in court.

Scott Horton: Right. And now ‘and challenge it in court’ means, correct, challenge not just the behavior but the FISA Amendments Act that legalizes this, because isn’t this the illegal part of the illegal Bush program that the Democrats legalized in 2008, including then-Senator Obama?

Marcy Wheeler: Actually, no, it goes back to 2006. It goes back — I actually think, I’m going to write a post that I think that this application of Section 215 was birthed in a secret meeting between Robert Mueller and Dick Cheney on March 26, 2004. It goes back that far. The members of Congress who say they’ve known about it say that they’ve known about it since 2006. And what happened was the New York Times had its big scoop in December, December 15th actually, 2005. That was the day before Congress was set to pass the Patriot renewal, the first renewal of the Patriot Act, and there was actually a filibuster, one of the few filibusters that, you know, nobody — there was a filibuster of it, and so the administration had to put off passage, extension of the Patriot Act or the renewal, the four-year renewal of the Patriot Act until March of 2006, and in the interim they tweaked the language pertaining to Section 215, and we have to assume, and there are some IG reports that clearly indicate it and there have been hints by people testifying before Congress that clearly indicate it, that since that time and probably before, they have been using Section 215 to do this kind of massive collection.

Scott Horton: Hmm.

Marcy Wheeler: So, yeah, it comes out of the illegal program. It’s a part of making it legal. But that, I mean it goes back, it goes back seven years.

Scott Horton: Really. Now, so, and then does it go without saying, or we should go ahead and stop and say that if they’re doing this to Verizon, this is the same thing goes for every other telecom, right?

Marcy Wheeler: I think that’s — let’s assume that until they tell us differently for once. You know?

Scott Horton: Yeah. Okay, so Greenwald, in yesterday’s piece at The Guardian he refers to an article that came out in USA Today in 2006 that referred to apparently everybody except Verizon on this whatever. I was just wondering, what exactly is new? I think he said a congressman said that they learned about it at least in 2006. What exactly is new about this other than he’s got the FISA document that proves it?

Marcy Wheeler: Well that’s a big, that’s a big thing.

Scott Horton: I mean that is a big thing —

Marcy Wheeler: Yeah, and just to, just to —

Scott Horton: — but this isn’t a separate and distinct extra project, this is the same project that we’re talking about.

Marcy Wheeler: Well, just as an example, back in 2012 when Binney, and I forget his first name, but when the former NSA, really top-level NSA person was saying that the government was collecting all of this data, Hank Johnson asked Keith Alexander, who heads the NSA, about it in a hearing in March of 2012 and he said, ‘No, no, the NSA doesn’t do that.’ And very tellingly he said, ‘If it’s domestic, the FBI has to do that.’ And I did a post then — I think you and I even talked about it — I did a post then saying what Alexander was doing was giving a nondenial denial that served and was reported as such by a bunch of credulous journalists, that kind of allay fears that the government is doing massive dragnet collections. But if you looked at his language, he was basically saying, ‘Oh, the FBI does it.’ What we know from what Glenn published is that the FBI provides the explanation for it and then the data goes right into NSA anyway. The FBI applied for the order, it was granted to the FBI, but the order told Verizon to deliver the data to NSA. So one of the things it reveals is how they’re getting around certain restrictions on the NSA, and they’re basically turning the FBI into a front.

Scott Horton: Mmhmm. And so these — I’m sorry.

Marcy Wheeler: But — yeah, I mean so we’ve known — those of us who track this very closely have been saying for a long time, ‘Look, there’s a huge amount of circumstantial evidence they’re doing this.’ And people who don’t want to believe the government is doing this kind of dragnet spying have responded by saying, ‘Oh, you’re being conspiracy theorists.’ And, you know, those same people and some very good lawyers this morning are going, ‘I had no idea that the relevancy standard meant dragnet surveillance.’ They’re now rethinking the counterarguments they’ve made against us supposed conspiracy theorists for the last five years, because, you know, it’s there in print that this is in fact what they’ve been doing. So I think, you know I think that there are people who will finally be concerned who for years have been dismissing this as a possibility.

Scott Horton: Mmhmm. Well and then there’s a — like we were talking about with the FISA Amendments Act, there’s a bipartisan consensus for this on Capitol Hill that ‘it doesn’t matter what the Constitution says, what matters is we’re taking good care of you,’ that’s what Dianne Feinstein said I think this morning or yesterday, that this is about protecting us from terrorists, so shut your trap.

Marcy Wheeler: Right. Right. I mean and people should know, when Dianne Feinstein says that, especially if you guys are California residents, you should call her and say, ‘If that’s true that this is so unquestionable, why did you work so hard to keep it secret both last year when the FISA Amendments Act was passed and in 2011?’ Because she was the leader in keeping this stuff secret. If it’s so defensible, if it’s so valuable, then there is no reason to keep it secret, and Dianne Feinstein has been crucial to keeping it secret.

Scott Horton: Well, on the other hand too though, everybody knows this, and in fact I think we’ve all assumed this since the 1980s or something, that it’s like the Judas Priest song, the eye in the sky and they’re watching everything and tapping every phone. The National Security Agency hand in hand with AT&T etcetera built the entire telecommunications infrastructure of the planet Earth in the first place. I mean, since the end of the Second World War. So of course they could tap every signal on earth that they want to tap, that’s their job, so to think that they’re not doing this to me is the crazy theory. Whether it’s legal or not, whether they can use it against you in court later or that kind of thing is sort of out of the question, but I’m always amazed by these stories that that’s all they’re doing, really? I would have thought that that was 20 years ago.

Marcy Wheeler: Right. But that’s you and I. I mean, honestly, I think if you’ve been following closely, it seems very common sense, but even today people are saying this must be illegal because the relevancy standard doesn’t allow it, and yet you know I keep pointing them to congressional debates going back to 2006 that make it very clear. I mean, in 2006, 2009, 2011, certain members of Congress tried to make Section 215 only apply to if you had a specific connection to a terrorist. So in other words they couldn’t do dragnet, they had to say ‘I need to collect these business records because this person goes to the mosque with this known terrorist,’ and it was defeated every single time, in part with the leadership of Dianne Feinstein but she wasn’t the only one. And so, you know, at that point it becomes crystal clear that they are interpreting ‘relevant to’ very broadly, and yet none of the people covering, or few of the people covering those debates actually wanted to describe it as such, but it has been clear. It’s just nobody, you know, everybody wants to avoid making trouble I think.

Scott Horton: Yeah. Well and you know the people with the political power are the people who aren’t worried about it ever happening to them too. And so —

Marcy Wheeler: Well the funniest thing actually —

Scott Horton: — you know, among the population.

Marcy Wheeler: No, no, the funniest thing this morning is in the appropriations committee with Eric Holder, somebody — and it might even have been Barbara Mikulski, which is funny because, you know, she represents the National Security Agency, so generally she’s the world’s biggest wiretapping fan because that’s her constituent, and probably, you know, her most important one. But they were like, ‘Wait a second. If you’re grabbing everything — ‘ and Verizon Business Services actually provides services to the government, so it provides a lot of the services for the people who work for the federal government in DC. They’re like, they said, these senators all of a sudden are concerned and they said, ‘Wait a second, if you’re collecting everything, that means you’re also collecting members of Congress and Supreme Court justices, right?’ And, you know, Holder didn’t really answer. And they’re like, ‘Wait a second! That’s a separation of powers issue.’ And so all of a sudden Congress has met the separation of powers they’ve done nothing to defend for years. It’s neat.

Scott Horton: They’re so horrible. Them congressmen and senators. And they don’t even know how bad that looks. They’re like, ‘What? You mean this abuse could apply to us, not only our constituents that we pretend to serve?’

Marcy Wheeler: Right, that’s exactly what they’re arguing. Yeah.

Scott Horton: Yeah, what about the separation of their power from us?

Marcy Wheeler: (laughs)

Scott Horton: To mind our own business and live in our own house and communicate and freely associate with who we want without having the national government looking over our shoulder, for crying out loud.

Marcy Wheeler: Well, and importantly, in the White House talking points, which are internally contradictory and ridiculous, they say all three branches of government have approved this. And that’s, that is a fiction that needs to be busted with this exposure, because — and that’s something Congress has pushed and is pushing with the drone court is that they are claiming that this secret court that rubberstamps everything, that doesn’t allow any antagonistic representation, much less given the third party doctrine, meaning that Verizon is the person involved here rather than, you know, all their customers, they’re pretending that’s a real court, that, you know. And it’s Congress that has sustained the fiction that the FISA court is a real court. And they want to keep throwing stuff into that court which is not a real court. And that’s one of the lessons that needs to come out of this is that you cannot say that all three branches of government have approved this if what we’re doing is using this kangaroo court, and that’s what it fundamentally amounts to.

Scott Horton: Well you know that’s always been confusing to me, because, you know, like I know if you want to dispute a traffic ticket, that’s not an Article III court at all, that is an Article II court, right? That’s the executive branch, and the person might wear a little black robe but it’s pretend, it sort of has the impression of a judicial check but it’s not really. And then so the FISA court at least used to be housed inside the Justice Department, and I think it’s made up of members of the judiciary, but at that point they’re actually working for the executive branch. But then somebody told me no, only sorta kinda and now they moved down the street. And so maybe they’re an Article ?? court rather than simply an Article II court. Can you clarify that?

Marcy Wheeler: They’re an Article III. The members of the FISA court are picked by the Supreme Court, the Chief Justice. There have only ever been two Democratically appointed FISA court judges, which is pretty funny. Although I have to say that the people John Roberts has picked of late, some of them have a good independent streak, so you know maybe he’s getting worried about this rubberstamp court himself. But —

Scott Horton: So you’re saying it is an Article III court but it’s still a rubberstamp court.

Marcy Wheeler: It’s a rubberstamp court because the standards they’re asked to rule on — I mean, for example, in the Section 215 order, what it says is presumptively you have to in certain circumstances, pretty much anything involving a foreign power, you have to presume that this warrant applies. So the rules in which the judges on that court are allowed to rule on are so narrow it makes them meaningless. If that makes sense.

Scott Horton: Right.

Marcy Wheeler: I mean, the judges are given next to zero discretion.

Scott Horton: I see.

Marcy Wheeler: And so — but that’s the way the law was written. And again, that’s an act of Congress, you know, that now they’re concerned about separation of powers — they made this court a kangaroo court.

Scott Horton: Right.

Marcy Wheeler: That’s what they wanted, and they’re responsible for it.

Scott Horton: All right, everybody, that’s Marcy Wheeler, the genius at emptywheel.net. Thank you Marcy.

Marcy Wheeler: Thanks so much, Scott.

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Blogger Marcy Wheeler discusses the start of Bradley Manning’s “speedy” trial after three years in detention; the government’s case against Manning and Julian Assange as co-conspirators engaged in espionage; why Bob Woodward and top government officials are never prosecuted for leaking and publishing classified information; and how Manning’s careful selection of documents to leak (to avoid getting “blood on his hands”) has made his prosecution easier.

Scott Horton Interviews Marcy Wheeler
The Scott Horton Show
June 5, 2013

Transcript (Page down for the audio)

Scott Horton: All right, y’all, welcome back to the show. I’m Scott Horton. The website is scotthorton.org, streaming live here from 11 to 1 Texas time, noon to 2 Eastern at scotthorton.org and at noagendastream.com, also at talkstreamlive.com. And you can follow me on Facebook, Twitter and YouTube at /scotthortonshow. All right, so first up today on the show is our friend Marcy Wheeler, emptywheel she’s called in the blogosphere because that’s the name of her blog, emptywheel. It’s at emptywheel.net. Welcome back, Marcy. How are you doing?

Marcy Wheeler: Good. How are you, Scott?

Scott Horton: I’m doing great. I really appreciate you joining us on the show today.

Marcy Wheeler: Absolutely.

Scott Horton: All right. So let’s talk about Bradley Manning. Now I know you’re not there actually covering the trial, but I do know that you’re reading as much as you can about it and probably making more sense about it all than anybody else, so I guess could we start with celebrating the fact that he’s actually getting a trial now after three years held without one.

Marcy Wheeler: Right. I mean, he’s been in custody, at times in illegal, in solitary confinement, for three years, so he’s been waiting a while for his day in court.

Scott Horton: Now, I guess — how rare is it for someone to be held for so long without a trial, and then if this kind of thing does happen because of an oversight or some kind of mistake or a prosecution foot-dragging or something, do people ever get set free for not really getting a speedy trial these days?

Marcy Wheeler: No, not really.

Scott Horton: Or do they just get one, and so it’s not really an issue, or what?

Marcy Wheeler: No, and in this case a significant amount of the delays came in the government trying to get a bunch of classified information to the defense. So in other words, the delays came from the government foot-dragging on classified information, yet because they were able to tell the judge that it was all because it was a very complex case, they were able to foot drag.

And behind everything, and behind even what we’ve seen so far at the trial, it’s worth remembering that Julian Assange is still out there, and by all accounts or by all appearances the government would like Bradley Manning to implicate Julian Assange, so keeping him in custody and particularly keeping him as they did for about a month, a month and a half, when was it, it was January of 2010, in solitary confinement when he didn’t need to be, keep in mind all of that, you know, might help them to get Bradley Manning to implicate Julian Assange, which he has refused to do thus far.

Scott Horton: Mmhmm. Well, now the thing is when they say, they’re trying to push this idea in his trial that he conspired with Assange, that before, I guess you know he says in his statement where he pleaded guilty to the facts of the case a little while back, he said that well he tried he Post and the Times and he didn’t hear back from them, so then he went to WikiLeaks I think — I’m sure you understand it in much more detail than I do, but, the government here is saying, at least in their opening statement, correct?, that Assange really conspired with him and made him do it. Like they’re trying to put their case against Assange out there as part of their case against Manning in order to make — I don’t know what, to smear Assange as not a journalist and to make Manning more guilty?

Marcy Wheeler: Well, they’re doing a couple of things. One is they’re trying to show that Manning was a conspirator with WikiLeaks. One of the things they’re alleging is that he helped to edit the Collateral [Murder] video which came out in April of 2010 — April of 2010? April of — I’ve lost track of time.

Scott Horton: Yes, yes, that’s right.

Marcy Wheeler: It was one of the first things that came out, right?

Scott Horton: Yeah.

Marcy Wheeler: And so they’re trying to say that because he edited that, which they haven’t proven in court yet, it’s not clear they can, but because he edited that he was part of WikiLeaks and therefore kind of in a conspiracy with them. Another thing they’re arguing is that Manning went to a list of WikiLeaks Most Wanted and gave them those documents. In other words, followed the directions of WikiLeaks.

And then the most interesting thing, and apparently a pretty weak argument they’re making, is that Manning started leaking information just two weeks after he got to Iraq. And that appears to be based on the existence of, this is called the Garani video, which is a video of an even bigger civilian massacre. And what appears to be happening, or what may be happening, is the government — there’s another guy who got fired for issues relating to classified information. He, according to Adrian Lamo, had it on his computer and may have been the original leaker, and the government seems to want to be arguing that Manning was involved in that earlier leak, which doesn’t seem to make sense. So in other words the government is — I mean and remember, Manning has already pled to lesser charges that would keep him in jail for 20 years. And so the big prize that the government has gone to trial to get is this aiding the enemy charge.

So there’s two things they want. They want the aiding the enemy charge. They want to depict this guy who gave you and me information we should have anyway as American citizens, they want to depict him as a traitor, as somebody aiding, and they’re going to argue that because Osama bin Laden had the information, that he was aiding Osama bin Laden and he knew that. And then the other thing, again, is that they want to establish that Julian Assange was a spy and not a journalist, using, it should be said, the same arguments that they used in the James Rosen Fox reporter case where he was cajoling people for a certain kind of information. So it’s an incredibly dangerous argument, nevertheless they’re going to trial to prove it.

Scott Horton: Right. Well now, so what is the difference in the Risen case? Is it that Manning is a military guy and not a civilian — well, the NSA, that’s the military anyway, right?

Marcy Wheeler: Right. Yeah.

Scott Horton: So there is no difference?

Marcy Wheeler: Oh, with James Rosen?

Scott Horton: Yeah — oh, I’m sorry, I thought you said Risen, so I was thinking back to now the persecution of the whistleblower in that case.
Marcy Wheeler: No —

Scott Horton: But that was the CIA guy, right?

Marcy Wheeler: — it’s hard to keep the Risens and Rosens apart. No, James Rosen is the Fox guy who leaked information on North Korea —

Scott Horton: Right.

Marcy Wheeler: — or who reported information leaked to him on North Korea. So, but I mean, but in that case, to get a warrant, so to get the content of his e-mails with the alleged leaker, the government argued in a warrant that he was a co-conspirator and leaking classified information, and so they’re basically, they used the same argument there that they’re using to try and implicate Julian Assange as a spy, and that’s the dangerous argument. In spite of the fact that DOJ in the Rosen case is as we speak claiming to Congress they would never prosecute a journalist, they’re still making these arguments in the Manning case that make it clear that they do want to prosecute journalists.

Scott Horton: Right. Well now, I guess we should always use Bob Woodward as the standard, right? Because he’s the Mouth of Sauron. He’s the guy that brings us everything official from, you know, whatever administration, if it’s the Democrats in power he says exactly what they want us to know, if it’s the Republicans in power he writes exactly what they want us to know, and he publishes all kinds of officially leaked yet not declassified by the officials type data. So I guess that’s really where we got to, you know, use him as kind of the benchmark for what he’s allowed to get away with and other journalists are not, even though the only real difference is he’s dealing in official leaks and they’re dealing in unofficial ones which are not different under the law, only politically, right?

Marcy Wheeler: Well they may be different under the law because the people who leaked to Bob Woodward are so senior — I mean, remember he got leaked to in the Valerie Plame case and certainly at least information on the NIE, and regarding that particular information, Dick Cheney basically told Scooter Libby that he basically insta-declassified it, and so I think the government would insist that everything they say to Bob Woodward is insta-declassified and therefore legal.

But with regards to the aiding the enemy case, Osama bin Laden actually went after Woodward’s books, and, you know, wouldn’t you too, because they include very detailed information. One of the details that Woodward broke — purportedly broke, it was in public court documents kind of in classified form before that — was that the CIA is training a special forces in Afghanistan that works in the borderlands of Afghanistan and Pakistan. Highly classified CIA program, covert, covered under all sorts of, you know, secret rules, and Osama bin Laden got that from Bob Woodward’s book, and yet the people who leaked to Bob Woodward that information are not being tried in the way Bradley Manning is.

And significantly, and I think this detail just came out today, one of the things that was made clear today is that some of the documents Osama bin Laden allegedly got via WikiLeaks were these Afghan cables, these Afghan — they’re not cables exactly, but they’re daily reports of events in the field that actually get pretty old pretty quickly, so they’re not all that sensitive, but more importantly in today’s testimony it became clear that actual sources, people that you’d need to protect the identities of, people who are considered credible and reliable, those are protected, they’re only referred to by number. And so whereas Bob Woodward leaked highly classified, highly compartmented information — I mean it was leaked by Bob Woodward to Osama bin Laden. What we’re talking about in Bradley Manning’s case is he would leak dated information that remained coded when Osama bin Laden got it. That’s the difference.

Scott Horton: Yeah. Well you know Obama even said, an activist asked him, ‘Well what about Daniel Ellsberg, right?,’ trying to trick him into being a Democrat and condemning Ellsberg, right, who every Democrat wants to put on Mount Rushmore for helping to end the Vietnam War and whatever. And Obama’s response was, ‘Well, those were classified differently.’ Yeah, differently, Top Secret.

Marcy Wheeler: Right.

Scott Horton: This stuff was just regular Secret and Confidential. What a joke.

Marcy Wheeler: Yeah. I mean, there’s just no, there’s no way you can credibly argue that what Ellsberg leaked was less damaging if you buy the classification standards, than what — I mean I think one of the things I find most interesting about the State Department cables is reading between State Department skepticism. So, you know, there are a couple of times when the State Department will say something and it’s clear they’re not read into the big secrets and they go, ‘Yeah, this is clearly bullshit,’ and that’s when you know, you know, that’s, that’s — but I mean the State Department doesn’t deal as often in those Top Secret secrets that Woodward gets leaked, that Ellsberg leaked, that, you know, and Manning, there are two levels of — well, two main levels of networks, so there’s the SIPRnet, which is what he was alleged to leak from, and there’s JWICS, which is a much higher level of classification, and he will testify, or his defense will testify over the course of this trial, that he purposely didn’t touch anything from JWICS, which are the same kinds of secrets that Ellsberg leaked, because he didn’t want to do that kind of damage. He leaked the lower classification stuff that should in no way be that damaging.

Scott Horton: Right. Yeah, he explained that in his testimony, right, that he was very careful about what he leaked and didn’t for just those reasons. He did not — not that he didn’t want to be accused of compromising sources and methods, he did not want to compromise sources and methods. He did not want anyone to get hurt by this. He only was trying to help.

Marcy Wheeler: Right.

Scott Horton: And so he was careful in the first place to leak it that way.

Marcy Wheeler: Right —

Scott Horton: Which explains why no one was hurt, because he was really careful about what he did.

Marcy Wheeler: Yeah. I mean, I think you, you know — and I think what — I mean I did a post some time ago, the, one of the last arguments that they argued pretrial was who and how many of the government’s witnesses can testify in classified form. And they’re going to have, for example, one of the Osama bin Laden Seals testify completely in classified form. They’re going to have a CIA guy whose name has already been published testify entirely in secret.

But one of the more interesting people they’re going to have testify is the guy who was ambassador to Yemen in 2009, 2010, who wrote some of the most damning cables in that they revealed that Yemen was lying and claiming credit for our drone strikes, they provided a lot of circumstantial evidence that we tried to kill Anwar Awlaki in 2009 when we didn’t have any operational intelligence on him, they provide evidence about what we pretended to know about the Al Majala massacre in December 2009 that killed a Bedouin tribe, so they’re really damning. And the government wants to have this guy testify in secret as to the harm that these leaks purportedly did.

And so, you know, you put 2 + 2 together and it seems very likely that they are going to argue in secret that Manning harmed U.S. security because he revealed that the U.S. government and Yemen are lying about who’s responsible for killing all these Yemenis, which was already well known by the time he leaked it. I mean, by the time he — nobody had any illusions that Yemen had developed this sophisticated air force —

Scott Horton: Right.

Marcy Wheeler: — no one had any illusions about that, but nevertheless the fact that Manning allegedly leaked this information that made us, you know, that gave us all proof of this, that’s the harm, that’s the kinds of argument that the government is going to argue about harm.
Scott Horton: Mmhmm. Yeah, I know for a fact on that particular story that Jason Ditz at news.antiwar.com in November, December 2009 was covering all of those drone strikes and, you know, reporting about how the Yemeni government was claiming responsibility for them and how not believable that was (laughs), since obviously the CIA and JSOC were running around.

Marcy Wheeler: Yeah, I mean you knew in real time, and you knew in real time that the government’s arguments about civilian casualties were bogus.

Scott Horton: Right.

Marcy Wheeler: And yet that’s the harm that they’re going to argue. That’s their big case about this harm to national security.

Scott Horton: Well now, so, okay, help me understand here. If it wasn’t Barack Obama and the unprecedented war on whistleblowers, more than twice as many persecuted whistleblowers as all other presidents in American history combined, but what if this was still just the friendly old George W. Bush years, how far out of proportion is the persecution of Manning here if it wasn’t, you know, a whole new day for going after whistleblowers? Would they, basically everything that he’s pleaded guilty to, he would have been prosecuted for that no matter what, and it’s just all this aiding the enemy stuff is the ridiculous add-on charges?

Marcy Wheeler: Well, they never argued aiding the enemy. You know, I think had they had their way, they would have gone after James Risen. So they would have gone after a journalist if they could find a way to do it, but ultimately I think they weren’t able to in part because any evidence against him would have come from the illegal wiretap program that he exposed, and it’s a lot harder to go after James Risen for exposing all these illegal programs. I mean, Manning clearly exposed illegal actions, but, you know, there are these, among this ocean of just really corrupt actions that —

Scott Horton: And what you say, Risen, he’s the New York Times reporter who did some groundbreaking work on the CIA basically handing ready-made nuclear bomb blueprints over to the Iranians.

Marcy Wheeler: Right.

Scott Horton: That’s for people who aren’t that familiar. That’s why he can get away with a little bit more is he works for the newspaper of record, which is a little bit different than being a specialist in the Army.

Marcy Wheeler: Right. Well, and they’ve gone after his source for the Iran story, but you know they didn’t prosecute Thomas Tamm, who by his own admission was one of the sources for the illegal wiretap story. And I think in that case — I mean, and here’s the thing. And, you know, ultimately the way our government keeps secrets is with this completely arbitrary tyranny really of secrecy in that the government and particularly the president, ultimately the president claims he’s got unfettered control over what is secret and what is not, and so ultimately the president can make completely arbitrary decisions about which leaks are worth pursuing and which aren’t, and a lot of them never get prosecuted because the secrets themselves are so sensitive to prosecute them, and I suspect that’s what happened with the illegal wiretap program, because to prosecute those leaks you’d have to avoid, you’d have to get around the argument that they’re illegal. And, you know, so to some degree Manning was screwed because he didn’t leak classified enough material which probably would have protected him.

But then, and then the other thing is, and we, you know, we just got information on this today is that, you know, DOD’s Inspector General is sitting on this report showing that Leon Panetta at a meeting, at a big celebration for the Osama bin Laden killers, basically leaked Top Secret information while probably Kathryn Bigelow was present, or Mark Boal, one of the two Zero Dark Thirty people, while they were present, leaked it to Hollywood producers, and —

Scott Horton: He was the head of the CIA at the time.

Marcy Wheeler: What’s that?

Scott Horton: He was the head of the CIA at the time.

Marcy Wheeler: He was head of CIA at the time.

Scott Horton: Mmhmm. Well, and then that would be one of those cases where they say he can declassifiy it just by saying it if he wants to and then after the fact say, ‘Right, President Obama?,’ and then that’s it, right? And he gets to get away with that scot free.

Marcy Wheeler: Yeah, and I’m sure that’s what happened, because, you know, of course the government wanted — we only know — I mean, the government wanted this movie out there, wanted their self-serving narrative of the Osama bin Laden raid out there in time for the election, and so we only know about it because Peter King, the Long Island congressman, requested this investigation. But DOD’s Inspector General is still sitting on it, has been sitting on it at least since December.

Scott Horton: Mmm. And now so what all did you find out in there other than — was that the big news, was that one leak at the party or whatever?

Marcy Wheeler: Yeah, that’s the big news, Top Secret information Panetta made available to, again, it’s not clear whether it’s Bigelow or Boal. I mean that plus the fact that DOD’s IG has been sitting on this.

Scott Horton: Mmhmm. Well now, so what about the future of reporting here? Because I hear a lot of talk about a chilling effect and government sources are a lot more afraid than before — I don’t think they ever used to have impunity in or out of the military to tell anything, you know, unauthorized leaks, to speak in an unauthorized way to reporters, but somehow they got away with it a lot easier before than nowadays, and now journalism has changed, has been changed, you know, lately. Even people talk about even just in the Obama years, much less the Bush years.

Marcy Wheeler: Yeah, I mean, I think that, at least in my opinion, a lot of people who used to be very good journalists are telling a lot more stories that don’t even include the obvious counternarrative. And, you know, and I don’t know, none of them will admit to it, none of them — [phone clicks off]

Scott Horton: Oh yeah, isn’t that nice? Check check. Well, sorry Marcy. Well, technology got the best of us on that one, but that was the great Marcy Wheeler from emptywheel.net.

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Nathan Fuller of the Bradley Manning Support Network discusses day two of Manning’s court martial; witness testimony including “the rat” Adrian Lamo; and why the government insists on pushing the egregious “aiding the enemy” charge.

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Philip Giraldi, executive director of the Council for the National Interest, discusses what’s behind the popular protests in Turkey; why Turkish Prime Minister Erdogan doesn’t seem like a secular moderate anymore; how Syria could be Turkey’s “Vietnam” in terms of foreign policy disasters; Erdogan’s claim that protestors are linked with terrorists; why Salafist jihadis are no threat to the US; Condi Rice’s deadly plan for a faked Somalia regime change; and why US foreign policy has been inscrutable since 9/11.

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Chase Madar, civil rights attorney and author, discusses the start of Bradley Manning’s court martial; the list of charges against Manning, which could amount to an effective life sentence if he’s convicted; why this case sets a bad precedent for journalism and a free press; our terrible (selectively enforced) system of laws on government leaks and whistleblowers; and how Manning revealed the criminal behavior of governments without getting “blood on his hands.”

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Ian Freeman, a Free Talk Live radio host, discusses Rich Paul’s conviction on drug charges and a possible life sentence; the judge’s disregard of jury nullification instructions; law enforcement’s use of plea deals, informants and blackmail in the war on drugs; why New Hampshire’s Free State Project is scaring the government; and the Porcupine Freedom Festival from June 17-23 in Lancaster, NH.

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Mark Thornton, Senior Fellow at the Ludwig von Mises Institute, discusses how Austrian economists recognized the housing bubble long before it burst; the stock market’s meteoric rise and record levels of investor margin/leverage; a possible future ratings downgrade on US debt; and the crony capitalists among us.

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