Sunday, August 25, 2013

Manning's Sentence Is Strong Signal to Whistleblowers

   When the Nixon administration tried to stop the New York Times and Washington Post from publishing the Pentagon Papers, government lawyers argued that the information “could” or “might” prejudice national security. The Supreme Court rightly said that was not enough to justify the unprecedented step of ordering the newspapers, in effect, to stop the presses.
   Four decades later, the government had a much easier case in prosecuting then-Pfc. Bradley Manning for leaking hundreds of thousands of classified, computerized documents to Wikileaks. As in the Pentagon Papers case, however, the government lawyers have yet to show — at least on the public record — that the publication of this classified information has actually harmed the United States.
   The findings that U.S. Army Judge Denise Lind set out after having convicted Manning of multiple counts are silent on any actual harm to U.S. interests from Manning’s leaks. Here, complete with legal verbiage, is Manning’s most serious offense: “Wrongfully and Wantonly Causing Publication of Intelligence Belonging to the United States on the Internet Knowing the Intelligence is Accessible to the Enemy to the Prejudice of Good Order and Discipline in the Armed Forces or of a Nature to Bring Discredit Upon the Armed Forces.”
   On that so-called espionage count, Lind found that Manning “had reason to believe” that the information “could be used to the injury of the United States or the advantage of any foreign nation.” But, she added, “the government is not required to prove that the information was actually used to injure the United States.” None of Manning’s other offenses — conversion, transmitting defense information, computer fraud, and violation of a “lawful general regulation” — required such proof either. Lind rejected the government’s most serious charge: aiding the enemy.
  Manning, who now identifies as a woman and calls herself “Chelsea,” apologized during the sentencing hearing for her actions and acknowledged they were wrong. “I’m sorry that my actions hurt people,” Manning testified in a three-minute, unsworn statement from the witness stand. “I’m sorry that they hurt the United States.”
  Manning’s contrition before a judge with the power to sentence her to up to 90 years’ imprisonment made perfect sense as a legal strategy. But, as Manning supporter Rainey Reitman points out in an article for the Freedom of the Press Foundation, Manning is actually contradicting earlier statements by current and former government officials that the information was not damaging U.S. interests.
  Back when Wikileaks was publishing the fruits of Manning’s data dump, officials up to and including Vice President Joe Biden pooh-poohed any fears that the leaks were causing harm. “I don’t think there is any substantive damage, no,” Biden told MSNBC in an interview on Dec. 16, 2010.
  Publicly, the State Department at the time was claiming “substantial damage” from the disclosures of the cables. But Reuters quoted congressional sources as saying that State Department briefers had privately described the leak just as Biden had: embarrassing but not damaging. The stronger public statements, the congressional sources explained, were needed to bolster legal efforts to shut down the Wikileaks web site and/or prosecute the leakers.
  Manning had been identified by then as the leaker — fingered in May 2010 by an ex-hacker, Adrian Lamo, who feared Manning’s disclosures were putting Americans’ lives at risk. Manning, dealing with his own emotional difficulties while stationed in Iraq, had sought out Lamo through cyberspace as a fellow sufferer of Asperger’s disorder. In their computer exchanges, Manning took credit for Wikileaks’ disclosure of an indiscriminate U.S. helicopter airstrike in suburban Baghdad in July 2007 that took 12 lives, including two Reuters news agency employees.
  Lamo, the self-confessed hacker of the New York Times’s computer system, had no information, only a layperson’s intuition, about the potential risk of Manning’s disclosures. Three years later, the government has yet to produce any evidence that the leaks resulted in any loss of life. Indeed, as Rainey points out, now retired Brig. Gen. Robert Carr, who had headed the Wikileaks “mitigation” effort, acknowledged during Manning’s sentencing hearing that he knew of no one killed as a result of having been identified in the so-called Afghan War Logs that Manning had leaked.
  Weighed against what former Secretary of Defense Donald Rumsfeld candidly described as the “overwrought” reaction to the Wikileaks disclosures are the benefits to the public’s right to know. The so-called Iraqi War Logs, for example, indicate that the United States undercounted civilian deaths in post-Saddam Iraq and failed to investigate reports of abuse, torture, rape, and even murder by Iraqi police. The State Department cables have been “at least partially successful” in providing more “transparency” to international politics, according to Joshua Keating, associate editor of Foreign Policy.
  Lind may or may not have taken all this into consideration in sentencing Manning to 35 years’ imprisonment [Aug. 21]; she said nothing to explain her reasons. The sentence was less than the 60 years the government had asked for — and less, according to Manning’s attorney, David Coombs, than the government had offered in a plea bargain. Still, it is the stiffest sentence ever for releasing classified documents. That will send a powerful warning against any future whistleblower who, like Manning, might think that exposing possible government wrongdoing will help make the world a better place. 

Monday, August 19, 2013

Policing Stop-and-Frisk in New York City

   A Cleveland police officer, patrolling his regular beat, observed two men walking up and down in front of a store window a dozen times, conferring with each other after each of the walk-bys. The officer, suspecting the two men were “casing the joint,” stopped to question them and, after patting them down, discovered that both of the men, John Terry and Richard Chilton, were carrying weapons.  Terry appealed his subsequent weapons conviction to the U.S. Supreme Court, which in Terry v. Ohio (1968) upheld the conviction after concluding that the officer had reasonable grounds for the initial “stop and frisk.”
   Thus was born the Terry stop: the Supreme Court-approved practice of stopping an individual if an officer has a reasonable suspicion of criminal activity and frisking the individual if the officer has a reasonable fear the individual could be armed.
   Four decades later, three New York City police officers stopped David Floyd as he was walking from the subway toward home in the Bronx. The officers asked Floyd for identification and, fearful after he reached inside a pants pocket for his cell phone, patted him down for weapons. No weapon was found, and no charge was filed. Floyd asked for the officers’ names and badge numbers, but they gave only their last names and badge numbers that did not match the names given.
   Floyd’s encounter with the NYPD in April 2007 was one of more than 4.4 million stops that New York City police officers conducted in an eight-year period under an aggressive policy initiated by Police Commissioner Raymond Kelly and supported and now vigorously defended by Mayor Michael Bloomberg. As in Floyd’s case, the vast majority of the stops — almost 90 percent — resulted in no charges whatsoever. In about half of the stops, police also conducted a “frisk,” but weapons were found in only 1.5 percent of the patdowns.
   Those are the statistics that a federal judge, Shira Scheindlin, relied on last week [Aug. 12] in a 195-page ruling in a class action brought in Floyd’s name, Floyd v. New York, that declared the NYPD’s stop-and-frisk practices unconstitutional. The numbers speak for themselves. “How reasonable is it if 90 percent of the time you’re wrong?” Wall Street Journal reporter Devlin Barrett asked rhetorically in an appearance on the public radio program To the Point.
  The numbers are even more telling when broken down by race. More than half of the stops – 52 percent – involved African Americans, in a city where blacks make up about one-fourth of the total population. Hispanics were stopped in 31 percent of the encounters; they comprise about 29 percent of the city’s population. As Scheindlin found, the statistics indicate a pattern of racial profiling by the police.
  Bloomberg, in the final months of his 12-year tenure, has defended the police department’s policies — what he calls “stop, question, and frisk” — as helping make New York the safest big city in the country. New York in fact has a low rate of homicides or other violent crimes compared to many big cities, but Bloomberg is taking credit for lowering the city’s crime rate in a decade when the rate was declining nationwide. Moreover, Scheindlin found no reason to believe that the stop-and-frisk policies were responsible for reducing crime. Instead, she said the policies may be counterproductive by reducing citizen cooperation with police, especially in the minority neighborhoods singled out for the tactic.
  Bloomberg also has defended the city’s policies by stressing the supposedly detailed reports required for all stops — proof, he suggests, that the city has nothing to hide or be ashamed of. But Scheindlin was unimpressed after her examination of the reports: UF-250’s, in police department parlance. First, as in Floyd’s case, some number of stops are never documented at all. Moreover, the information in the UF-250’s is often limited. Instead of providing a narrative, officers typically simply check off boxes to indicate the reason for the stop; “furtive movements” and “high crime areas” are the ones most frequently given. And even though Terry requires police have reason to suspect criminal activity, Scheindlin found that officers failed to specify any suspected crime in slightly over one-third of the reports.
  Along with her ruling on the city’s liability, Scheindlin issued a companion 39-page remedial order that designated Peter Zimroth, a private lawyer who was formerly the city’s corporation counsel and a chief assistant district attorney, as a monitor to help institute and oversee reforms. She left most of the details to be worked out, but as one immediate step she ordered that officers in one precinct in each of New York’s five boroughs to be equipped with body cameras to record all police encounters with civilians. Scheindlin said she will weigh later whether the benefits in reducing unconstitutional stops outweigh any financial or administrative hardships.
  The city is vowing to appeal. Scheindlin is aptly described in her Wikipedia biography as an “aggressive” judge, and she has been reversed in several high-profile decisions. But several of the candidates vying to succeed Bloomberg responded last week by embracing the need to reform stop-and-frisk policies. Scheindlin stressed that she was not prohibiting stop-and-frisk, only insisting that the tactic be employed within constitutional limits. Bloomberg could serve his city better by cooperating toward that goal instead of defending a policy that, on close examination, seems to have gone beyond constitutional limits.

Monday, August 12, 2013

Holder Wants to Accomplish More Before Leaving

   Attorney General Eric Holder appears to have served notice to his critics that he is not going anywhere soon by announcing a laundry list of criminal justice reforms in a speech to the American Bar Association (ABA) on Monday [Aug. 12]. At the top of the list is a sensible but likely controversial move to combat prison overcrowding by limiting the impact of harsh mandatory sentence provisions in run-of-the-mill federal drug cases.
   In an address to the ABA’s House of Delegates, Holder correctly noted the expensive and counterproductive practice of overincarceration in the United States —  at the federal level and in many states. As Holder put it, the United States is “coldly efficient” at putting criminals behind bars and keeping them there. “Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” Holder said.
   With the highest incarceration rate of any country, the United States houses almost one-fourth of the world’s prisoners but has only one-twentieth of the world’s population, Holder noted. The federal prison population has increased 800 percent since 1980 while the country’s population has increased only about one-third. The 219,000 federal inmates fill federal prisons 40 percent beyond their intended capacity.
  Speaking in San Francisco, Holder passed over —  at least in his prepared text — specific mention of California’s own severe prison crisis. Two years ago, the Supreme Court upheld a well-documented order by a three-judge federal court that the state reduce prison population to 110,000 — or merely 30 percent above capacity. California Gov. Jerry Brown, once a liberal Democrat, insists the state has done enough by bringing the population down to 120,000. But the federal court refused to change its order and the Supreme Court earlier this month [Aug. 2] turned down the state’s appeal.
  As Holder aptly noted, federal prison overcrowding has been driven by an increase in federal drug prosecutions and in particular by the long mandatory minimum sentences enacted by Congress in the 1980s and ’90s. Drug offenders comprise about half the federal prison population: some are in for serious drug trafficking, but many — probably most — are not. But the mandatory sentencing laws give judges little leeway for tempering the excesses that Congress has enacted.
  Congress cannot repeal prosecutorial discretion, however. So Holder is moving to ease the sentencing law by directing U.S. attorneys in most cases to omit from formal charges the specific quantity of drug seized or sold and thus to avoid triggering the mandatory minimum prescribed for specified quantities. That policy, he said, will apply to low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels.
  Holder said the Justice Department is also revising its policies for considering compassionate release for inmates who pose no threat to the public. The Bureau of Prisons already in April expanded compassionate release for medical reasons. Holder announced a further expansion for elderly inmates who did not commit violent crimes and who have served “significant portions” of their sentences. In addition, the Justice Department is looking into expanding diversion programs such as drug treatment or community service programs that serve as effective alternatives to incarceration.
  Fittingly, Holder, the first African American to serve as attorney general, also addressed the continuing racial disparity in sentencing between white and black inmates. He cited one report, released in February, that indicates black male offenders in recent years have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. “This isn’t just unacceptable,” Holder said. “It is shameful.”  For now, the only reform is to direct a group of U.S. attorneys to examine the disparities and develop recommendations on how to address them.
  Holder has been a political lightning rod, as almost any attorney general is bound to be. He reportedly considered leaving at the end of Obama’s first term, but agreed to the president’s request to stay. White House aides have grumbled, anonymously, that Holder has a political tin ear. As one example, Holder retreated in the face of overwhelming political opposition from his decision in November 2010 to try the accused 9/11 mastermind Khalid Sheikh Mohammed in a federal court in New York City. More recently, Holder antagonized the news media by allowing the Justice Department to issue an intrusive subpoena against the Associated Press in a leak investigation.
  In announcing the criminal justice initiatives, however, Holder signaled that he and Obama are tied at the hip on the issues. Holder recalled Obama’s work on such issues as a community organizer and in the Illinois legislature. He also noted the administration’s successful efforts in Obama’s first term to reduce the racial disparity in sentencing for crack versus powdered cocaine. And he made clear that “the president and I” had discussed and decided on the actions being taken and the proposals being studied. 
  The inside-the-beltway speculation about Obama’s tenure resurfaced in the spring in, among other places, a long article in The New York Times [June 4].  Unnamed West Wing aides were described in the story as wishing that Holder would go. But his former spokeswoman Tracy Schmaler told the Times that Holder is determined to stay long enough to “accomplish what he would like to do so that he could leave on his own terms.”

Sunday, August 4, 2013

Opening Up Foreign Intelligence Surveillance Court

   Nearly two full years have passed since the Foreign Intelligence Surveillance Court (FISC) ruled unconstitutional something that the National Security Agency (NSA) was doing was either unconstitutional or illegal or both. Amazingly, in a country that venerates the rule of law, the very existence of this 86-page ruling was unknown until recently. And its exact contents are still unknown, not only to the public but also to members of Congress.
   The 11-member court set up in 1978 in the wake of a quarter-century of CIA scandals has been much derided throughout its lifetime as a rubber stamp for the executive branch. But something that the NSA was doing in carrying out the government’s clandestine mass electronic surveillance program proved to be too much for the generally compliant court to approve. And the government is now facing a deadline of next week [Aug. 12] to respond to the effort by the Electronic Frontier Foundation (EFF), a digital rights organization, to unseal at least parts of the secret opinion.
   The litigation over the secret opinion constitutes the most damning refutation of the argument from the Obama administration and congressional intelligence committee leaders that robust oversight by Congress and the court itself has kept the mass surveillance programs under control. Two gadfly members of the Senate Intelligence Committee, Democrats Ron Wyden of Oregon and Mark Udall of Colorado, have been raising alarms for a couple of years about privacy-invasive monitoring of U.S. citizens by the NSA. The committee’s rules prevented Wyden and Udall from being more specific.
   The bombshell disclosures by the ex-NSA contractor Edward Snowden helped Wyden, Udall, and other surveillance critics finally gain front-page attention. The belated backlash on Capitol Hill forced the administration’s intelligence agencies into high-stakes lobbying to beat back a bipartisan attempt in the House of Representatives to rein in the NSA’s activities.
  The amendment by Rep. Justin Amash, R-Mich., would have prohibited the NSA from bulk collection of phone records from U.S. carriers and cut off funding for the program as currently administered. The House rejected the amendment by a fairly narrow margin, 217-205. (Party breakdown: Democrats, 111-83; Republicans: 94-134.)
   In the run-up to the vote, lawmakers in both chambers were complaining about the difficulty of getting straight answers and complete details from Obama administration officials about the NSA’s programs. The two Intelligence Committee chairs — Sen. Diane Feinstein, D-Calif., and Rep. Mike Rogers, R-Mich. —  both have insisted from the start of the Snowden controversy that information about the program has been available to any member of Congress on request. But gadfly journalist-blogger Glenn Greenwald disclosed in The Guardian on Sunday [Aug. 4] unsuccessful efforts by two House members —  Alan Grayson, D-Fla., and Morgan Griffith, R-Va. — to get more information: Grayson from the Intelligence Committee, Griffith from the NSA. 
   Snowden’s disclosure also helped bring to the surface criticism of the FISC’s role by one of its former members: James Robertson, now retired from the federal district court in Washington. Robertson served on the court from 2002 to 2005, but resigned in protest over disclosure of the Bush administration’s warrantless wiretapping program. Now, Robertson says the FISC has been put into an inappropriate position by being asked to rule not on individual applications for surveillance but on mass surveillance requests. Those are policy matters, Robertson says, that are better addressed by the other branches of government.
    Robertson spoke to the newly established Privacy and Civil Liberties Oversight Board on July 12, just a few days after an article in The New York Times describing “more than a dozen classified rulings” from the FISC allowing expanded data collection by the NSA [July 7]. Reporter Eric Lichtblau quoted sources outside the court who insisted on anonymity in describing what he called “a secret body of law.” Judges on the court declined to comment, but Robertson said he was “frankly stunned” by the story.
   The appointment of FISC judges has itself come under criticism. The law gives the chief justice the power to appoint judges, for fixed seven-year terms. Chief Justice John G. Roberts Jr. —  who served in the executive branch under two Republican presidents, Ronald Reagan and George H.W. Bush —  has used that power to stack the court with Republican-appointed judges with executive experience, according to a detailed analysis in The New York Times [July 26].
   Various proposals to reshape the FISC are now in circulation, but all present practical problems that will help stand-pat lawmakers slow or defeat them in Congress. One proposal calls for presidential appointment and Senate confirmation of FISC judges. Robertson among others suggests creating some governmental entity that could appear before the FISC in opposition to the government so that the court would have the benefit of the usual adversarial process.
   Disclosure of the FISC’s secret 2011 opinion could shed some light on these controversies. The court’s chief judge, Reggie Walton, issued an order on June 7 stating that the court itself would not object to the release of the decision pursuant to the Freedom of Information Act request filed by EFF. The matter is now pending before Judge Amy Berman Jackson in Washington. The government had asked to stay the proceedings until September, but Jackson ruled on July 9 that the government has to release the opinion by Aug. 12 or explain why not.