Wikileaks Was Just a Preview: We're Headed for an Even Bigger Showdown Over Secrets

[Eugen Leitl]

http://www.rollingstone.com/politics/blogs/taibblog/wikileaks-was-just-a-preview-were-headed-for-an-even-bigger-showdown-over-secrets-20130322

Wikileaks Was Just a Preview: We're Headed for an Even Bigger Showdown Over
Secrets

POSTED: March 22, 10:53 AM ET

U.S. Army Private Bradley Manning

Alex Wong/Getty Images

I went yesterday to a screening of We Steal Secrets, Oscar-winning director
Alex Gibney's brilliant new documentary about Wikileaks. The movie is
beautiful and profound, an incredible story that's about many things all at
once, including the incredible Shakespearean narrative that is the life of
Julian Assange, a free-information radical who has become an uncompromising
guarder of secrets.

I'll do a full review in a few months, when We Steal Secrets comes out, but I
bring it up now because the whole issue of secrets and how we keep them is
increasingly in the news, to the point where I think we're headed for a major
confrontation between the government and the public over the issue, one
bigger in scale than even the Wikileaks episode.

We've seen the battle lines forming for years now. It's increasingly clear
that governments, major corporations, banks, universities and other such
bodies view the defense of their secrets as a desperate matter of
institutional survival, so much so that the state has gone to extraordinary
lengths to punish and/or threaten to punish anyone who so much as tiptoes
across the informational line.

This is true not only in the case of Wikileaks b and especially the real
subject of Gibney's film, Private Bradley Manning, who in an incredible act
of institutional vengeance is being charged with aiding the enemy (among
other crimes) and could, theoretically, receive a death sentence.

Did the Mainstream Media Fail Bradley Manning?

There's also the horrific case of Aaron Swartz, a genius who helped create
the technology behind Reddit at the age of 14, who earlier this year hanged
himself after the government threatened him with 35 years in jail for
downloading a bunch of academic documents from an MIT server. Then there's
the case of Sergey Aleynikov, the Russian computer programmer who allegedly
stole the High-Frequency Trading program belonging to Goldman, Sachs
(Aleynikov worked at Goldman), a program which prosecutors in open court
admitted could, "in the wrong hands," be used to "manipulate markets."

Aleynikov spent a year in jail awaiting trial, was convicted, had his
sentence overturned, was freed, and has since been re-arrested by a
government seemingly determined to make an example out of him.

The Brilliant Life and Tragic Death of Aaron Swartz

And most recently, there's the Matthew Keys case, in which a Reuters social
media editor was charged by the government with conspiring with the hacker
group Anonymous to alter a Los Angeles Times headline in December 2010. The
change in the headline? It ended up reading, "Pressure Builds in House to
Elect CHIPPY 1337," Chippy being the name of another hacker group accused of
defacing a video game publisher's website.

Keys is charged with crimes that carry up to 25 years in prison, although the
likelihood is that he'd face far less than that if convicted. Still, it seems
like an insane amount of pressure to apply, given the other types of crimes
(of, say, the HSBC variety) where stiff sentences haven't even been
threatened, much less imposed.

A common thread runs through all of these cases. On the one hand, the
motivations for these information-stealers seem extremely diverse: You have
people who appear to be primarily motivated by traditional whistleblower
concerns (Manning, who never sought money and was obviously initially moved
by the moral horror aroused by the material he was seeing, falls into that
category for me), you have the merely mischievous (the Keys case seems to
fall in this area), there are those who either claim to be or actually are
free-information ideologues (Assange and Swartz seem more in this realm), and
then there are other cases where the motive might have been money (Aleynikov,
who was allegedly leaving Goldman to join a rival trading startup, might be
among those).

But in all of these cases, the government pursued maximum punishments and
generally took zero-tolerance approaches to plea negotiations. These
prosecutions reflected an obvious institutional terror of letting the public
see the sausage-factory locked behind the closed doors not only of the state,
but of banks and universities and other such institutional pillars of
society. As Gibney pointed out in his movie, this is a Wizard of Oz moment,
where we are being warned not to look behind the curtain.

What will we find out? We already know that our armies mass-murder women and
children in places like Iraq and Afghanistan, that our soldiers joke about
smoldering bodies from the safety of gunships, that some of our closest
diplomatic allies starve and repress their own citizens, and we may even have
gotten a glimpse or two of a banking system that uses computerized insider
trading programs to steal from everyone who has an IRA or a mutual fund or
any stock at all by manipulating markets like the NYSE.

These fervent, desperate prosecutions suggest that there's more awfulness
under there, things that are worse, and there is a determination to not let
us see what those things are. Most recently, we've seen that determination in
the furor over Barack Obama's drone assassination program and the so-called
"kill list" that is associated with it.

Weeks ago, Kentucky Senator Rand Paul b whom I've previously railed against
as one of the biggest self-aggrandizing jackasses in politics b pulled a
widely-derided but, I think, absolutely righteous Frank Capra act on the
Senate floor, executing a one-man filibuster of Obama's CIA nominee, John
Brennan.

Paul had been mortified when he received a letter from Eric Holder refusing
to rule out drone strikes on American soil in "extraordinary" circumstances
like a 9/11 or a Pearl Harbor. Paul refused to yield until he extracted a
guarantee that no American could be assassinated by a drone on American soil
without first being charged with a crime.

He got his guarantee, but the way the thing is written doesn't fill one with
anything like confidence. Eric Holder's letter to Paul reads like the legal
disclaimer on a pack of unfiltered cigarettes:

Dear Senator Paul,

It has come to my attention that you have now asked an additional question:
"Does the president have the additional authority to use a weaponized drone
to kill an American not engaged in combat on American soil?" The answer is
no.

Sincerely,

Eric Holder

You could drive a convoy of tanker trucks through the loopholes in that
letter. Not to worry, though, this past week, word has come out via Congress
b the White House won't tell us anything b that no Americans are on its
infamous kill list. The National Journal's report on this story offered a
similarly comical sort of non-reassurance:

The White House has wrapped its kill list in secrecy and already the United
States has killed four Americans in drone strikes. Only one of them, senior
al-Qaida operative Anwar al-Awlaki, was the intended target, according to
U.S. officials. The others b including Awlaki's teenage son b were collateral
damage, killed because they were too near a person being targeted.

But no more Americans are in line for such killings b at least not yet.
"There is no list where Americans are on the list," House Intelligence
Chairman Mike Rogers told National Journal. Still, he suggested, that could
change.

"There is no list where Americans are on the list" b even the language used
here sounds like a cheap Orwell knockoff (although, to be fair, so does V for
Vendetta, which has unfortunately provided the model for the modern protest
aesthetic). It's not an accident that so much of this story is starting to
sound like farce. The idea that we have to beg and plead and pull Capra-esque
stunts in the Senate just to find out whether or not our government has
"asserted the legal authority" (this preposterous phrase is beginning to leak
into news coverage with alarming regularity) to kill U.S. citizens on U.S.
soil without trial would be laughable, were it not for the obvious fact that
such lines are in danger of really being crossed, if they haven't been
crossed already.

This morning, an Emory University law professor named Mary Dudziak wrote an
op-ed in the Times in which she pointed out several disturbing aspects to the
drone-attack policy. It's bad enough, she writes, that the Obama
administration is considering moving the program from the CIA to the Defense
Department. (Which, Dudziak notes, "would do nothing to confer legitimacy to
the drone strikes. The legitimacy problem comes from the secrecy itself b not
which entity secretly does the killing.") It's even worse that the
administration is citing Nixon's infamous bombing of Cambodia as part of its
legal precedent.

But beyond that, Obama's lawyers used bad information in their white paper:

On Page 4 of the unclassified 16-page "white paper," Justice Department
lawyers tried to refute the argument that international law does not support
extending armed conflict outside a battlefield. They cited as historical
authority a speech given May 28, 1970, by John R. Stevenson, then the top
lawyer for the State Department, following the United States' invasion of
Cambodia.

Since 1965, "the territory of Cambodia has been used by North Vietnam as a
base of military operations," he told the New York City Bar Association. "It
long ago reached a level that would have justified us in taking appropriate
measures of self-defense on the territory of Cambodia. However, except for
scattered instances of returning fire across the border, we refrained until
April from taking such action in Cambodia."

But, Dudziak notes, there is a catch:

In fact, Nixon had begun his secret bombing of Cambodia more than a year
earlier. (It is not clear whether Mr. Stevenson knew this.) So the Obama
administration's lawyers have cited a statement that was patently false.

Now, this "white paper" of Obama's is already of dubious legality at best.
The idea that the President can simply write a paper expanding presidential
power into extralegal assassination without asking the explicit permission
of, well, somebody, anyway, is absurd from the start. Now you add to that the
complication of the paper being based in part on some half-assed,
hastily-cobbled-together, factually lacking precedent, and the Obama
drone-attack rationale becomes like all rationales of blunt-force, repressive
power ever written b plainly ridiculous, the stuff of bad comedy, like the
Russian military superpower invading tiny South Ossetia cloaked in hysterical
claims of self-defense.

Why Rand Paul's Filibuster Matters

The Wikileaks episode was just an early preview of the inevitable
confrontation between the citizens of the industrialized world and the giant,
increasingly secretive bureaucracies that support them. As some of Gibney's
interview subjects point out in his movie, the experts in this field, the
people who worked on information security in the Pentagon and the CIA, have
known for a long time that the day would come when all of our digitized
secrets would spill out somewhere.  

But the secret-keepers got lucky with Wikileaks. They successfully turned the
story into one about Julian Assange and his personal failings, and headed off
the confrontation with the major news organizations that were, for a time,
his allies.

But that was just a temporary reprieve. The secrets are out there and
everyone from hackers to journalists to U.S. senators are digging in search
of them. Sooner or later, there's going to be a pitched battle, one where the
state won't be able to peel off one lone Julian Assange or Bradley Manning
and batter him into nothingness. Next time around, it'll be a Pentagon
Papers-style constitutional crisis, where the public's legitimate right to
know will be pitted head-to-head with presidents, generals and CEOs.

My suspicion is that this story will turn out to be less of a simplistic
narrative about Orwellian repression than a mortifying journey of
self-discovery. There are all sorts of things we both know and don't know
about the processes that keep our society running. We know children in Asia
are being beaten to keep our sneakers and furniture cheap, we know our access
to oil and other raw materials is being secured only by the cooperation of
corrupt and vicious dictators, and we've also known for a while now that the
anti-terror program they say we need to keep our airports and reservoirs safe
involves mass campaigns of extralegal detention and assassination.

We haven't had to openly ratify any of these policies because the
secret-keepers have done us the favor of making these awful moral choices for
us.

But the stink is rising to the surface. It's all coming out. And when it
isn't Julian Assange the next time but The New York Times, Der Spiegel and
The Guardian standing in the line of fire, the state will probably lose, just
as it lost in the Pentagon Papers case, because those organizations will be
careful to only publish materials clearly in the public interest b there's no
conceivable legal justification for keeping us from knowing the policies of
our own country (although stranger things have happened).

When that happens, we'll be left standing face-to-face with the reality of
how our state functions. Do we want to do that? We still haven't taken a very
close look at even the Bradley Manning material, and my guess is because we
just don't want to. There were thousands of outrages in those files, any one
of which would have a caused a My-Lai-style uproar decades ago.

Did you hear the one about how American troops murdered four women and five
children in Iraq in 2006, including a woman over 70 and an infant under five
months old, with all the kids under five? All of them were handcuffed and
shot in the head. We later called in an airstrike to cover it up, apparently.
But it barely registered a blip on the American consciousness.

What if it we're forced to look at all of this for real next time, and what
if it turns out we can't accept it? What if murder and corruption is what's
holding it all together? I personally don't believe that's true b I believe
it all needs to come out and we need to rethink everything together, and we
can find a less totally evil way of living b but this is going to be the
implicit argument from the secret-keeping side when this inevitable
confrontation comes. They will say to us, in essence, "It's the only way. And
you don't want to know." And a lot of us won't.

It's fascinating, profound stuff. We don't want to know, but increasingly it
seems we can't not know, either. Sooner or later, something is going to have
to give.

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http://www.rollingstone.com/politics/blogs/taibblog/wikileaks-was-just-a-preview-were-headed-for-an-even-bigger-showdown-over-secrets-20130322#ixzz2OkZzCoQR 

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