British and U.S. intelligence officials say they are worried about a “doomsday” cache of highly classified, heavily encrypted material they believe former National Security Agency contractor Edward Snowden has stored on a data cloud.
The cache contains documents generated by the NSA and other agencies and includes names of U.S. and allied intelligence personnel, seven current and former U.S. officials and other sources briefed on the matter said.
The data is protected with sophisticated encryption, and multiple passwords are needed to open it, said two of the sources, who like the others spoke on condition of anonymity to discuss intelligence matters.
The passwords are in the possession of at least three different people and are valid for only a brief time window each day, they said. The identities of persons who might have the passwords are unknown.
One source described the cache of still unpublished material as Snowden’s “insurance policy” against arrest or physical harm.
U.S. officials and other sources said only a small proportion of the classified material Snowden downloaded during stints as a contract systems administrator for NSA has been made public. Some Obama Administration officials have said privately that Snowden downloaded enough material to fuel two more years of news stories.
“The worst is yet to come,” said one former U.S. official who follows the investigation closely.
Snowden, who is believed to have downloaded between 50,000 and 200,000 classified NSA and British government documents, is [allegedly] living in Russia under temporary asylum, where he fled after traveling to Hong Kong. He has been charged in the United States under the Espionage Act.
Cryptome, a website which started publishing leaked secret documents years before the group WikiLeaks or Snowden surfaced, estimated that the total number of Snowden documents made public so far is over 500.
Given Snowden’s [alleged] presence in Moscow, and the low likelihood that he will return to the United States anytime soon, U.S. and British authorities say they are focused more on dealing with the consequences of the material he has released than trying to apprehend him.
It is unclear whether U.S. or allied intelligence agencies – or those of adversary services such as Russia’s and China’s – know where the material is stored and, if so, have tried to unlock it.
One former senior U.S. official said that the Chinese and Russians have cryptographers skilled enough to open the cache if they find it.
Snowden’s revelations of government secrets have brought to light extensive and previously unknown surveillance of phone, email and social media communications by the NSA and allied agencies. That has sparked several diplomatic rows between Washington and its allies, along with civil liberties debates in Europe, the United States and elsewhere.
Among the material which Snowden acquired from classified government computer servers, but which has not been published by media outlets known to have had access to it, are documents containing names and resumes of employees working for NSA’s British counterpart, the Government Communications Headquarters (GCHQ), sources familiar with the matter said.
The sources said Snowden started downloading some of it from a classified GCHQ website, known as GC–Wiki, when he was employed by Dell and assigned to NSA in 2012.
Snowden made a calculated decision to move from Dell Inc to another NSA contractor, Booz Allen Hamilton, because he would have wide-ranging access to NSA data at the latter firm, one source with knowledge of the matter said.
Glenn Greenwald, who met with Snowden in Hong Kong and was among the first to report on the leaked documents for the Guardian newspaper, said the former NSA contractor had “taken extreme precautions to make sure many different people around the world have these archives to insure the stories will inevitably be published.” (Note to all whistleblowers: that’s how it’s done. Be sure to send your info to numerous sources)
“If anything happens at all to Edward Snowden, he has arranged for them to get access to the full archives,”Greenwald said in a June interview with the Daily Beast website. He added: “I don’t know for sure whether he has more documents than the ones he has given me… I believe he does.”
In an email exchange with Reuters, Greenwald, who has said he remains in contact with Snowden, affirmed his statements about Snowden’s “precautions” but said he had nothing to add.
Officials believe that the “doomsday” cache is stored and encrypted separately from any material that Snowden has provided to media outlets.
Conservative British politicians, including Louise Mensch, a former member of parliament, have accused the Guardian, one of two media outlets to first publish stories based on Snowden’s leaks, of “trafficking of GCHQ agents’ names abroad.”
No names of British intelligence personnel have been published by any media outlet. After U.K. officials informed the Guardian it could face legal action, the newspaper disclosed it had destroyed computers containing Snowden material on GCHQ, but had provided copies of the data to the New York Times and the U.S. nonprofit group ProPublica.
Sources familiar with unpublished material Snowden downloaded said it also contains information about the CIA – possibly including personnel names – as well as other U.S. spy agencies such as the National Reconnaissance Office and National Geospatial–Intelligence Agency, which operate U.S. image-producing satellites and analyze their data.
U.S. security officials have indicated in briefings they do not know what, if any, of the material is still in Snowden’s personal possession. Snowden himself has been quoted as saying he took no such materials with him to Russia.
Foul deeds will rise, though all the earth o’erwhelm them, to men’s eyes. — William Shakespeare, Hamlet
Watergate remains the greatest political scandal in modern American history. It culminated not only in President Nixon’s announcement of his resignation, 39 years ago Thursday, but in the conviction and imprisonment of his three most senior aides. Attorney General John Mitchell, White House Chief of Staff H.R. Haldeman, and Assistant to the President for Domestic Affairs John Ehrlichman were found guilty of conspiracy, obstruction of justice, and perjury in the three-month Watergate cover-up trial, which ended on January 1, 1975.
I saw it all unfold. I was a young lawyer working on the White House staff and assisting in Nixon’s defense efforts. It is true that we failed spectacularly. Of course, I’m disappointed we weren’t more successful. But whether the defendants were innocent or guilty, I’ve always worried on a more basic level that the heightened emotions of the times denied them the due process of law envisioned by our Constitution.
As a result of some recent discoveries I made while researching a book on the Watergate trials, my concern has been vindicated. It turns out that the notion that “no man is above the law” somehow didn’t apply to judges or prosecutors involved in the cover-up trial. Documents I have uncovered indicate that the efforts to punish the wrongdoings of Watergate led to further wrongdoing by the very officials given the task of bringing the Watergate defendants to justice.
The new documents suggest that defendants in the Watergate cover-up trial, held before Judge John Sirica, received anything but a fair trial. Indeed, they suggest prosecutorial and judicial misconduct so serious –- secret meetings, secret documents, secret collusion — that their disclosure at the time either would have prevented Sirica from presiding over the trial or would have resulted in the reversal of the convictions and the cases being remanded for new trials.
It matters not whether you believe that a retrial, under a different judge and perhaps held outside of the District of Columbia, might have resulted in one or more acquittals. That could well have been the result. The strong possibility remains that the Watergate defendants did not receive the fair trial guaranteed by our Constitution. For a nation that prides itself on the rule of law, even in cases of intense publicity and partisanship, this should be cause for concern.
* * *
Due process of law requires a trial judge who is both fair and impartial. Central to this tenet is the idea that judges cannot meet in private with just one side (“ex parte”) and without keeping a record that can be reviewed on appeal. Indeed, the Code of Conduct for United States Judges contains a specific and explicit ban on ex parte meetings. Canon 3.A.4 provides in pertinent part, emphasis mine:
4. Except as set out below, a judge should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers. If a judge receives an unauthorized ex parte communication bearing on the substance of a matter, the judge should promptly notify the parties of the subject matter of the communication and allow the parties an opportunity to respond, if requested. A judge may:
b) When circumstances require it, permit ex parte communication for scheduling, administrative, or emergency purposes, but only if the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication.
Yet this is precisely what happened in the Watergate cover-up trial held before Sirica. The documents I have uncovered raise two basic and vital questions: How much private contact could Sirica, in his role supervising the Watergate grand jury, legitimately have with prosecutors presenting evidence to that grand jury before the trial began, and still be seen as fair and impartial? And had the substantial contacts revealed in these documents been known, would Sirica still have been able to appoint himself to preside over the trial? The answers to these questions lay bare a series of improprieties that call into question the legitimacy of the Mitchell, Haldeman, and Ehrlichman verdicts.
On November 1, 1973, Leon Jaworski, a past president of the American Bar Association and founding partner of the prestigious Houston law firm of Fulbright & Jaworski, replaced Archibald Cox as head of the Watergate Special Prosecution Force (WSPF). Upon arrival, he found himself sandwiched between the team of eager, politically partisan prosecutors he inherited from his predecessor, and a hanging judge who had taken a personal interest in the case and was eager to assist in its prosecution. Only now can we begin to appreciate how Jaworski responded — and perhaps admire his ingenuity.
Jaworski served as special prosecutor for just one year — but what a year it was. He was at ground zero during the denouement of the Watergate scandal, which included bringing the cover-up indictments of Nixon’s top aides. Those indictments named Nixon as an unindicted co-conspirator and were accompanied by a grand-jury report designed to be transmitted to the House of Representatives. The grand-jury report was intended to be the “road map” for the House Judiciary Committee’s impeachment inquiry.
The special prosecutor’s successful litigation to gain access to Nixon’s White House tape recordings, coupled with the Judiciary Committee’s adoption of three Articles of Impeachment, led Nixon to announce his resignation on August 8, 1974. A month later, President Ford fully and unconditionally pardoned the former president.
When Jaworski resigned as special prosecutor, at the end of October 1974, the only unfinished business was the trial of Nixon’s senior aides in the Watergate cover-up case. He didn’t hide the fact that he longed to leave the political intrigue of Washington to return to his beloved Texas. His resignation was announced just days after the cover-up trial jury had been sequestered.
As the special prosecutor’s files gradually became available for public review in the decades that followed, one of the troubling omissions was the noticeable absence of any documents from Jaworski’s personal files. (Records become available only in response to a Freedom of Information Act request, and even then only after extensive substantive review by National Archives staff. Investigatory files not resulting in indictments become available only upon the death of the individual involved — meaning that Watergate material is still slowly emerging, even after 40 years.)
This mystery was solved only last year, when Jaworski’s Watergate files were discovered to be a part of his posthumous donation to his Texas alma mater, Baylor University. These documents and memoranda were duly retrieved and reviewed by the National Archives, and portions of them became available to researchers earlier this year. If not the first to review these files, I am the first to note the impact and significance of those selected for discussion below.
Before reviewing some of the documents that have come to light, it is helpful to review the context in which they were written.
The WSPF had already been in existence for six months before Jaworski’s arrival. Many Republicans were critical of this totally independent organization, because its assembled attorneys consisted almost exclusively of Democrats from elite Ivy League law schools and its leadership consisted almost entirely of Democrats who had worked together in Robert Kennedy’s Department of Justice. Archibald Cox’s pedigree as a Harvard Law School professor and his hand-picked prosecutorial staff of Kennedy alumni and partisans only served to intensify the lines of combat as the WSPF’s investigations expanded well beyond the Watergate break-in itself.
Rumors were rife in Washington that Jaworski — a graduate of Baylor and the George Washington University Law School, and a conservative Democrat who had twice voted for Nixon — might not fit in with what had become known as Cox’s Army, and might interfere with their intended prosecutions of senior Nixon Administration officials. Within the WSPF, the Texan was seen as an untrusted and unproven leader, and it appears that he was sometimes kept in the dark about the full extent of ongoing investigations.
Jaworski’s ongoing concerns regarding his staff’s partisan attitudes are captured in his draft reply to a memo from his deputy, Henry Ruth, dated January 21, 1974. In it, he complains not only about their lynch-mob attitude towards Nixon but also about his inability to obtain forthright and objective advice:
Now let me address myself to the general tenor of your memorandum which reflects an attitude I discussed with you before – the subjective conviction that the President must be reached at all cost.
What is of some concern to me are the discussions, plans and understandings had and reached between staff members prior to any discussions with me. This results in convictions already formed and frankly, under such circumstances, the meetings are of no help to me.
At the same time, Jaworski had to operate in a judicial environment presided over by Sirica, a feisty former boxer who had been appointed to the bench by President Eisenhower in 1957. While invariably described as a Republican, Sirica had chosen as his career mentor Edward Bennett Williams, counsel for the Washington Post and the Democratic National Committee, and the two men remained very close. Popularly known as “Maximum John” because of his harsh sentences, Sirica was the most frequently reversed judge in the U.S. District Court for the District of Columbia. His clashes with the liberal D.C. Circuit Court of Appeals were legendary — and frequently turned on questions of giving defendants their rights of due process under the Constitution.
Sirica had appointed himself to preside over the original Watergate burglary trial when the burglary indictments were handed down on September 15, 1972, and had become something of a national hero for his relentless pursuit of the origins and responsibilities for the Watergate break-in. The Watergate burglars themselves — Gordon Liddy, Howard Hunt, James McCord, and four Cuban Americans — were convicted when that trial ended on January 23, 1973. Indeed, Sirica’s prosecutorial trial conduct and harsh sentencing of these burglary defendants was credited with bringing about the collapse of the Watergate cover-up, which had sought to limit responsibility for the Watergate break-in to low-level officials in the president’s reelection committee.
Proving that “the cover-up can be worse than the crime,” there was a renewed interest into just who had been responsible for the failed cover-up. After 10 months of intensive investigation, WSPF prosecutors contended that those indicted on March 1, 1974, along with some 17 unindicted co-conspirators, had worked together to protect higher-ups in the Nixon White House and the president’s reelection committee from being brought to justice in the first trial. Those higher-ups included Nixon’s three top aides — Mitchell, Haldeman, and Ehrlichman.
It was widely suspected that Sirica was eager to preside over the trial of the cover-up’s criminal conspiracy and the obstruction of justice that had come to light as a result of his own actions.
Sirica had become chief judge of the D.C. District Court in 1971. Under federal rules, the longest-tenured judge in each district automatically served as chief judge until he turned 70, when he was required to step down. Thus Sirica would cease to be chief judge on March 19, 1974.
As long as he was chief judge, however, Sirica’s duties included two specific responsibilities. First was general oversight of the grand juries operating under the auspices of the district court. These were ministerial and not substantive duties, and involved primarily housekeeping matters. Second was the authority to identify special cases and to assign specific judges to preside over them — including himself — rather than have the trial judge assigned by the usual and random system of rotation.
Our system of justice envisions proceedings before fair and impartial judges, who are expected to stay above the fray as they preside over the trials unfolding before them. Those defending Nixon felt Sirica had become anything but disinterested — and was both biased in favor of WSPF prosecutors and had acquired a vested interest in securing the convictions of Nixon’s senior aides. Such convictions would not only vindicate his conduct in the earlier Watergate break-in trial, which had been criticized by many observers for its aggressiveness, but would further cement his national reputation as a vigilant, valiant, truth-seeking judge.
* Correction: This post originally misstated the year of Nixon’s meeting with Dean. We regret the error.
Sirica exercised his authority as chief judge to name himself to preside over the cover-up trial on March 1, 1974 — the very day the cover-up indictments were announced, and less than three weeks before he would have to step down as chief judge.
This self-assignment was the defendants’ worst nightmare. They immediately sought an order from the D.C. Circuit Court to mandate his removal. Their petition requested two actions: First, an evidentiary hearing to inquire into the nature and extent of Sirica’s suspected ex parte contacts with WSPF attorneys; and, second, a determination by an independent three-judge panel as to whether Sirica should be the one to preside over their trial. Their appellate briefs noted that the American Civil Liberties Union had concurred in the latter request.
Trying to remove a determined and opinionated judge is a chancy proposition. Failure can trigger adverse consequences — and Sirica was known to have a long memory. Fueling this concern, WSPF attorneys denounced allegations in the defendants’ briefs about Sirica’s possible bias as “scurrilous” and totally unfounded. Even so, the WSPF brief did not respond to the defendants’ request for the evidentiary hearing, or otherwise contain any comment in response to the defendants’ questions about Sirica’s possible ex parte meetings with WSPF prosecutors.
The appellate court did not take kindly to the defendants’ petition: Without even holding a hearing on the matter, a majority of its nine judges quickly and succinctly denied their request in an unsigned order, issued on behalf of the court sitting en banc (as the full nine-judge court, rather than the normal three-judge appellate panel), on June 7, 1974.
A lone dissent was filed by Judge George MacKinnon, who expressed surprise at the suddenness of his brethren’s actions. MacKinnon questioned how the court could characterize the matter as being “of exceptional importance” — a necessary precondition to sitting en banc — and then issue a one-sentence order, without further explanation; on a per curiam basis (that is, not signed, even by a single judge); and without providing the opportunity for oral argument. MacKinnon also found that the defendants’ two requests were reasonable on the basis of the facts presented in their briefs. His was, however, only a minority opinion, filed a month after the majority had ruled otherwise.
The defendants filed an appeal to the Supreme Court. Not to be outdone by the abruptness of the Circuit Court, the Supreme Court voted to deny the defendants’ petition without waiting for the WSPF’s own reply brief even to be filed.
It was as though the very act of questioning Sirica’s conduct and objectivity was an attack on the integrity of the judiciary itself — and these judges wanted no part of it. The defendants’ suspicions of illegitimate ex parte meetings were never given a fair hearing — or any hearing at all. The evidence supporting their concerns has now come to light only with the nearly accidental discovery of the documents in Jaworski’s confidential Watergate files.
The cover-up trial began the first week of October 1974. After a three-month trial, the principal defendants were convicted on all counts of conspiracy, obstruction of justice, and perjury. Their post-conviction appeals were unsuccessful; the Circuit Court, again sitting en banc and again issuing an unsigned, per curiam opinion, found no basis for reversal. The opinion dismissed any question of Sirica’s possible ex parte meetings with prosecutors as unworthy of concern, on the grounds that had any such meetings occurred, they would only have been in connection with Sirica’s official duties. The Supreme Court declined to hear any appeal.
And this is where matters stood for four decades — until Leon Jaworski’s papers became available earlier this year at the National Archives. Several of the documents I found among his papers suggest that the defendants’ concerns about Sirica’s impartiality and coordination with WSPF prosecutors were very well founded.
The Prosecution’s Ex Parte Meetings With Judge Sirica
A review of the nature and extent of the disclosures from these newly available Jaworski documents is best done on a calendar basis, but it is important to note that facts concerning each of these meetings are surfacing here for the first time. Not one of them has been mentioned in any of the hundreds of books written on the Watergate scandal.
– December 14, 1973: At Sirica’s request, four top WSPF officials participated in a private, ex parte meeting with Judges Sirica and Gerhard Gesell. In addition to Jaworski, the prosecutors present were Henry Ruth, deputy special prosecutor; Philip Lacovara, special counsel; and Richard Ben-Veniste, associate special prosecutor and head of the Watergate Task Force. Because no record was kept, we do not know the extent of the meeting or all of the topics that were covered. None of the participants mentioned this meeting in their subsequent books.
We also do not know why Judge Gesell was singled out to attend, to the exclusion of all other District Court judges. But we do know that Gesell ultimately presided over all but one of the Watergate-related trials that Sirica did not take for himself.
With these six participants, this could not have been a casual or informal meeting. Jaworski had assumed office just the month before, so the meeting may have been a full-blown review of what was going on and where things stood with regard to the status of ongoing and anticipated WSPF criminal investigations. Only two days before this meeting, Sirica had provided WSPF prosecutors with the tape of John Dean’s March 21, 1973*, meeting with Nixon, in which Nixon described the monetary demands from convicted Watergate burglar Howard Hunt, which Dean described as blackmail. It seems quite likely that Sirica was curious as to the prosecutors’ reactions to this particular tape.
Of course, any ex parte discussion between judges and prosecutors of actual evidence in a criminal case is strictly forbidden.
The reason we now know about the December 14 meeting is because of Jaworski’s file copy of a letter he sent Sirica nearly two weeks later, on December 27. It is interesting that in the intervening 40 years, no other copy of this letter has come to light. Jaworski’s letter predicts the timing and nature of indictments that could be forthcoming should the respective grand juries choose to follow the recommendations of his five WSPF task forces.
Obtaining some idea of the anticipated indictments was a perfectly legitimate concern for a chief judge responsible for management of the court’s docket. But this could not have been the sole basis for the December 14 meeting of those six people. If this were all Sirica wanted to know, he could have had his law clerk convey such a request to WSPF officials.
If Jaworski had wanted to protect Sirica from subsequent questions about the nature and extent of this unusual get-together, he could have supplied the requested information without also describing their ex parte meeting. Instead, his letter opened with the following sentence:
When Messrs. Ruth, Lacovara, Ben-Veniste and I met with you and Judge Gesell at your request on Friday, December 14, you suggested that it would be helpful if we could provide you with some sense of the caseload that we would be generating for the Court over the next several months.
It may be that Jaworski intended to make record of this questionable meeting, even while providing some administrative justification for its occurrence. Jaworski’s letter can be read to have sent the judge a none-too-subtle signal that such meetings could not be expected to remain secret. Sirica might himself have reached the same conclusion, because the original copy of this letter from Jaworski has not been found among Sirica’s papers at the Library of Congress.
A key prediction in Jaworski’s December 27 letter states that the comprehensive cover-up indictments were anticipated “by the end of January or the beginning of February.” This was information Sirica very much welcomed: The date gave him assurance that the cover-up indictments would be presented fully six weeks before he would have to step down as chief judge and lose the ability to appoint himself to preside over the trial.
– January 7, 1974: Early in the new year, Time announced its selection of Sirica as its 1973 “Man of the Year” in an extensive and laudatory cover story. Time’s choice confirmed that Sirica’s conduct of the Watergate break-in trial had turned him into an authentic, nationally recognized American hero. Many contemporary and subsequent observers think that the article also affected Sirica’s impartiality and objectivity with regard to all subsequent Watergate-related matters. He enjoyed being in the spotlight — and was looking for ways to stay there.
–January 21, 1974: The next indication of proposed prosecutorial coordination with Sirica came from within Jaworski’s own staff. His files contain a memo from Philip Lacovara on this date, describing the recommended procedure for handling the exceptionally sensitive grand-jury report about Nixon, which the prosecution force was drafting for transmittal to the House of Representatives.
Lacovara urged that another private meeting be held with Sirica, in order to be sure that the judge appreciated what was coming and would be prepared to order that the sealed report be forwarded to the House of Representatives in the manner that WSPF attorneys desired. As Lacovara explained:
It would be most unfortunate, for example, for the grand jury to return a presentment without forewarning and then have the judge summarily refuse to receive it because of his lack of awareness of the basis for such a submission.
The goal of this suggested ex parte meeting, then, was to educate Sirica in advance with regard to the grand-jury report, and to gain his concurrence on how it should be handled — but to do so in a manner that would not tip off the other side as to what was intended.
Had the other side learned of the intended grand-jury report, it might have moved swiftly to seek a finding before Sirica or on appeal that the grand jury had no authority to issue any report at all — that its sole function was to indict or not to indict. Indeed, there was no precedent for grand-jury reports in the D.C. Circuit. Congress, in passing organized-crime-control legislation in 1970, did provide for the creation of “special grand juries” that could issue such reports — but the Watergate grand jury had not been so designated.
Even if the defendants did not prevail in court, their challenge could have triggered a demand by congressional Republicans that the White House be provided the opportunity to review the report in advance and offer a rebuttal at the same time the report was transmitted to the Judiciary Committee. By keeping their initiative secret — possibly with Sirica’s advance concurrence — WSPF prosecutors could obtain a significant procedural advantage over Nixon and the cover-up defendants.
While the memo does advocate another ex parte meeting and offers to prepare a legal analysis for the judge’s eyes alone, at this point the meeting and offer were just suggestions. Unless Lacovara’s memo was acted upon, explaining its existence might not be all that difficult. Nonetheless, the only copy that appears to exist is the one in Jaworski’s confidential Watergate files.
Alternatively, if the suggested meeting had occurred, this sort of collusion between prosecutors and judges, including multiple ex parte meetings and the submission to the judge of undisclosed — and therefore uncontestable — memoranda justifying such a grand jury report, would raise serious questions about Sirica’s impartiality and about whether the defendants were being accorded the fundamentals of due process of law.
If the written record had ended at this point, with disclosure of just these two documents, questions could have been raised, but no dramatic and indefensible revelations would have been forthcoming. It is the two secretly dictated memos that Jaworski prepared for his confidential files after this that totally undermine any claim of Sirica’s impartiality.
–February 11, 1974: The predicted “end of January or the beginning of February” time frame for the cover-up indictment was now past, and the March 19 end to Sirica’s tenure as chief judge was fast approaching. So he occasioned another ex parte meeting with Jaworski on this date. As with their earlier private meeting, no mention of this one was made in subsequent books by either of the two people involved — or even in subsequent WSPF appellate briefs.
Jaworski did, however, dictate a memo to his confidential Watergate file the following day. This memo has to be read in its entirety to be believed, because the audacity of what Sirica had proposed is breathtaking. It is not clear which is the greater surprise: that Sirica would make such requests in an ex parte meeting or that Jaworski would record the meeting and the requests in such a forthright manner. In the opening paragraph of an initial draft, Jaworski writes:
On Monday, February 11, I met with the Judge at which time several matters were covered as we sat alone in the jury room. He again indicated that provided the indictments came down in time, he would take the Watergate Case, stating that he had been urged to do so by any number of judges from across the nation the most recent of them being those who were in attendance with him at a meeting in Atlanta. He expressed the opinion that these indictments should be returned as soon as possible. He also stated that henceforth all guilty pleas would be taken by him. We talked about the Vesco case and he merely expressed the thought that perhaps a sealed indictment would be of some help.
Jaworski’s choice of words raises several issues. First, he makes it very clear that he and Sirica had been alone, in a private room, and that the meeting had occurred at Sirica’s instigation. Second, Jaworski uses the term “again,” confirming this was not the first time the judge had informed Jaworski of his desire to appoint himself to preside over the cover-up trial. Third, there can be no doubt that Sirica was urging that the indictments be hurried along. Indeed, Jaworski notes that Sirica made this point two separate times. Sirica’s reason seems clear: In just over a month, he would be forced to step down as chief judge, after which he could no longer appoint himself to preside over the cover-up trial. Jaworski was already aware — because Sirica had told him — that he wanted to run this trial, too.
It is a huge procedural advantage for the prosecution to know in advance precisely which judge is going to preside over the trial of the indictments they have under consideration — and that the judge will hear all guilty pleas. The prosecution can tailor its indictments, garner its evidence, and consider whether to enter any plea bargains, aided by its knowledge of the peculiarities of a particular judge.
Jaworski’s mention of Sirica’s discussion of the Vesco case is troubling in and of itself. John Mitchell was one of the defendants accused of improperly helping Robert Vesco to resolve an SEC investigation in exchange for a $200,000 political donation, which was then about to go to trial in New York. But the actual reference is worse. When pressed to hurry the cover-up indictments, Jaworski would have explained that the prosecution did not want to bring the cover-up indictments in Washington, D.C., until after the Vesco jury had been sequestered in New York, lest Mitchell claim that those indictments had poisoned potential jurors’ minds for his case. Sirica’s apparent response was to suggest that the cover-up indictments be brought quickly anyway, so that he could appoint himself as judge. But, he apparently suggested, the indictments should be kept under seal so as not to potentially influence New York jurors. It is difficult to imagine a more egregious example of a judge working with the prosecution toward a common goal.
Much of the remainder of this Jaworski memo reflects Sirica’s providing his legal views as to the propriety of a grand-jury report about Nixon — about which even Sirica had severe reservations. Since Sirica was going to rule on these very issues, he should never have discussed his views with Jaworski, alone and in advance.
The Judge commented upon the status of matters before the grand jury which led into further comments on the possibility of the grand jury considering some type of special report or presentment. He considered this a very touchy problem and cautioned as to what the public’s reaction would be to a grand jury stepping out with something that was beyond its normal bounds. He cautioned that the whole effort could be tainted by something irresponsibly being done by the grand jury. He stated that the public would rightfully conclude that the entire proceeding had not been judicious but simply one of wanting to hurt the President. He further said that it was not the function of the grand jury but that of the House Impeachment Committee to express itself on that point. He then told me that in the event that I observed anything along that line being considered by the grand jury that he thought it would be appropriate for him to meet with the grand jury in camera. I expressed the belief that it was appropriate for the grand jury to refer to having in its possession evidence that it believed to be material and relevant to the impeachment proceedings and to suggest to the Court that it be referred to the House Committee for that purpose. He countered by stating that he believed he should be informed of the discretion that he could exercise in matters of that kind and further requested that I have a memorandum prepared for him that covers this subject. I agreed to have this done.
This memo confirms that the ex parte discussion that Lacovara had urged in his February 21 memo did actually occur. Yet this was much more than an ex parte meeting in which Sirica was being informed of an anticipated grand-jury report; this is a record of the legal advice that Sirica offered Jaworski upon learning of the proposed grand-jury report, along with their give and take discussion that followed. In sum, this is a judge giving legal advice to a prosecutor on matters that are certain to soon come before him for rulings — conduct that is indefensible as a matter of law.
– March 1, 1974: The comprehensive cover-up indictments were unsealed in Sirica’s courtroom at 11 a.m. The prosecution had met Sirica’s birthday-imposed deadline — albeit with less than three weeks to spare.
Jaworski then moved for special treatment of the cover-up case, so that Sirica could assign a judge out of the usual rotation to preside over it. Indeed, Sirica signed the order naming himself as trial judge later that same day.
The hearing was beautifully orchestrated, with everything coming off precisely as Jaworski and Sirica had discussed. Only the defendants were caught by surprise by the dramatic presentation of the sealed road map, designed for transmittal to the House of Representatives.
John Wilson, Haldeman’s criminal-defense attorney, was so incensed at the surprise (and sealed) grand-jury report that he wrote a formal letter to Sirica demanding to know if the judge had met with WSPF prosecutors in advance of this grand-jury action. His letter remains in Sirica’s papers at the Library of Congress. He never received any sort of answer or response. Some of the new Jaworski files reveal why any honest answer would have been difficult to write.
Once again, this memo must be read in full to be believed. Here is a portion, which confirms the worst fears of prosecutorial and judicial collusion:
On the morning of March 1, I met with Judge Sirica in chambers at 10:30am. We reviewed the agenda consisting of (1) presentation of indictments and sealed special report of the grand jury; (2) unsealing of the special report and reading by Judge Sirica, and the acceptance of the report and its resealing. I told Judge Sirica that I would ask the Court to specially assign the case in view of its length and protracted nature ….
After [the 11:00am hearing’s] opening, Judge Sirica looked at me, asked if I had anything to take up with the Court. I then rose, went to the lectern, and said, “May it please Your Honor, the grand jury has an indictment to return. It also has a sealed report to deliver to the Court.” The rest of the agenda was then followed including delivery of a briefcase of material, along with the special report to the Court — also a key to the briefcase. The Judge indicated that he would have an order on the special report on Monday (he told me he would transmit to the counsel for the House Judiciary Committee under rules that would not interfere with the trial of the accused). The Judge in open court asked if I had any further comments, and I stated: “Due to the length of the trial, conceivably three to four months, it is the Prosecution’s view that under Rule 3-3(c), this case should be specially assigned, and we so recommend.” This meant that Judge Sirica could assign the case to himself, which he did do by order later entered that day.
Such a documented agreement between the prosecutor and the judge — that Jaworski would move for special handling so that Sirica could appoint himself to preside over the trial — would have been enough on its own to have Sirica removed from the case before the trial or to have any resulting convictions overturned on appeal. But it has remained undisclosed until now.
On March 19, Sirica turned 70 and stepped down as chief judge of the District Court, as required. He had already appointed himself to preside over the cover-up trial and Gesell to preside over the Watergate Plumbers trial. Those assignments did not change with his stepping down.
* * *
Sirica’s meetings with WSPF prosecutors were never publicized or discussed in any way, because they would have raised substantive questions as to his objectivity. Virtually any ex parte meeting with an interested party, including prosecutors, is condemned by the Code of Judicial Conduct and the Canons of Ethics governing attorney conduct. Their substantive purpose, explicit judicial coordination with the prosecution, would certainly have been grounds for disciplinary actions — against Sirica for initiating them, and Jaworski for not refusing to participate in them.
Jaworski knew this, and chose to make no public disclosure. His risks became more complicated when the defendants attempted to have Sirica removed as their trial judge. Here is the dilemma he faced when they sought Sirica’s removal in Mitchell v. Sirica — and requested an evidentiary hearing into his alleged ex parte contacts with WSPF prosecutors: Had the meetings described above been disclosed, the resulting firestorm over Sirica’s injudicious conduct and Jaworski’s seeming acquiescence could well have jeopardized his license to practice law. This is why the WSPF reply brief, filed May 20, 1974, in response to the defendants’ appeal, did not directly respond to their requested evidentiary hearing in any manner whatsoever. The prosecutors could not represent to the appellate court that no such ex parte meetings had taken place or that they were ministerial in nature, so they chose to ignore the issue completely in their brief. This is highly questionable conduct for any officer of the court, who has an overarching responsibility not to deliberately mislead any judicial panel. Willful non-disclosure concerning a matter so squarely before the appellate court could be grounds for disbarment.
Caught between his own politically partisan staff and an exceptionally aggressive judge, Jaworski seems to have behaved in a way in which one can perhaps empathize — by making a record of these improper meetings which would eventually become public. Alternatively, he may simply have been keeping a thorough, contemporaneous record of events on which he could draw for his subsequent book. If so, then – much like Nixon’s similarly intended use of his White House tapes – the precise accuracy of the record he kept gives everyone pause for concern about what really took place. A third alternative is that Jaworski did destroy the final versions of his own memos once his book had been written, but didn’t realize that his secretary had kept earlier drafts in a separate file.
Regardless of the reasons that these records exist, they raise disturbing questions about the fairness of the Watergate trials. For the cover-up defendants, of course, these disclosures come far too late.
As revealing — and disturbing — as these Jaworski memos are, they are but the beginning. More material on Sirica and his conduct and coordination of the Watergate trials with interested parties has also come to light. For now, it is clear that Sirica should never have been allowed to preside over the cover-up trial, that Jaworski’s memos seem to indicate that he was cognizant of this at the time, and that he took pains to document Sirica’s judicial misconduct.
There were real crimes and real criminals in Watergate. But those who prosecuted these cases or presided over the trials did our Constitution no favors in their denials of due process of law to the defendants.
This article has focused primarily on Leon Jaworski’s role. Under the circumstances in which he found himself, did Jaworski do the right thing? Is this all we have any right to expect from distinguished counsel in times of intense political turmoil? Jaworski’s dilemma — and his response — remains well worth pondering in this, the 40th anniversary of the unfolding of the Watergate scandal.
Asylums all across the country are filled with people whose only neurosis is the vague feeling that they are being spied on or followed by unseen powerful enemies. Now Americans know that everyone is being spied on every time they pick up the phone, buy something, use the Internet, or walk around in public — so it turns out that these “paranoid” patients might not be delusional after all. It seems rather unfair to lock them up and classify them as crazy if our vague feelings of being stalked, and violated by the government turned out to be true.
To make sure you get this message, may I also say 9/11 – Eric Holder – birth certificate -Bill Ayers – drone – Orwell – Anonymous – leak.
In conclusion, just in case your algorithm has been overloaded, I would like to not mention my private, personal opinions about the
Second Amendment, Fourth Amendment, and Ninth Amendment (and you really do not want to know what I think about the Sixteenth Amendment). For more information, please read the Fifth Amendment.
PS — Tell the IRS that the best times for my upcoming audit are Tuesdays and Thursdays, but unannounced visits from the EPA, FBI, OSHA or ATF would be more convenient on Monday afternoons or Wednesday mornings. And, needless to say, you can eavesdrop any ol’ time.
In a stunning development, the National Security Agency (NSA) reports that PRISM, the secret spy program that monitors all internet activity in the US and the world and stores all the data in acres and acres of massive super-cooled buildings somewhere in the desert, has uncovered an active ongoing plot by the NSA to use the PRISM program to monitor, spy on, and collect all the internet activity in the US, in violation of the NSA’s charter that limits it to foreign spy activities.
The NSA is concerned that the newly discovered NSA PRISM program is to be used to launch an attack against the NSA.
“This PRISM program shows just how important it is for our national defense to have the PRISM program,” explained the NSA director.
“Without the PRISM program the NSA never would’ve been able to discover that the NSA has been actively plotting to attack the NSA with this scandal. This proves how effective the program is and why it’s so vital for national defense. PRISM intercepted internet chatter about the PRISM scandal on various websites and e-mails, which it effectively stored, cataloged, interpreted, ‘rang the alarm in the night’, and gave us timely warning of the threat to the NSA PRISM program.
“Incompetence of a few rogue agents” are to blame for the news being leaked, the NSA director said.
“And if you look at the reports — even the disclosures that Mr. Snowden has put forward — all the stories that have been written, what you’re not reading about is the government actually abusing these programs and listening in on people’s phone calls or inappropriately reading people’s emails. What you’re hearing about is the prospect that these could be abused. Now, part of the reason they’re not abused is because these checks are in place, and those abuses would be against the law and would be against the orders of the FISC.”
Even as he was speaking, his Administration released a document that said, in part,
– Since the telephony metadata collection program under Section 215 was initiated, there have been a number of significant compliance and implementation issues that were discovered as a result of DOJ and ODNI reviews and internal NSA oversight. In accordance with the Court’s rules, upon discovery, these violations were reported to the FISC, which ordered appropriate remedial action. The incidents, and the Court’s responses, were also reported to the Intelligence and Judiciary Committees in great detail. These problems generally involved human error or highly sophisticated technology issues related to NSA’s compliance with particular aspects of the Court’s orders. The FISC has on occasion been critical of the Executive Branch’s compliance problems as well as the Government’s court filings. However, the NSA and DOJ have corrected the problems identified to the Court, and the Court has continued to authorize the program with appropriate remedial measures. –
The President’s message really boiled down to this: It’s more important to persuade people surveillance is useful and legal than to make structural changes to the programs.
While Obama’s administration has worked hard to prevent details of these violations from becoming public and delayed even the Judiciary Committees from being briefed, some of them may come out as part of the DOJ Inspector General review that the Administration tried to thwart in 2009.
Also, even as he was speaking, EFF announced the government will turn over a redacted copy of the October 3, 2011 FISA Court ruling that found the minimization procedures for Section 702 violated the Fourth Amendment. A new Guardian report suggests that ruling may pertain to the use of a backdoor to conduct warrantless searches on US person content already collected under Section 702. (While many commentators have insisted the Guardian report provides no evidence of abuse, NSA and DNI’s Inspectors General refused to count how often Americans have been searched in such a way, effectively refusing to look if it has been abused.)
As Shane Harris astutely describes, all of this kabuki is designed solely to make people feel more comfortable about these dragnets.
And the President’s message really boiled down to this: It’s more important to persuade people surveillance is useful and legal than to make structural changes to the programs.
“The question is, how do I make the American people more comfortable?” Obama said.
Obama’s overriding concern was that people didn’t believe him when he said there was “nothing to fear.”
But the President just stood up and claimed the government hasn’t abused any of these programs.
It has, by its own admission, violated the rules for them.
Meanwhile, Ron Wyden has already released a statement applauding some of these changes while noting that Obama is still minimizing how bad the violations have been.
Notably absent from President Obama’s speech was any mention of closing the backdoor searches loophole that potentially allows for the warrantless searches of Americans’ phone calls and emails undersection 702 of the Foreign Intelligence Surveillance Act . I believe that this provision requires significant reforms. I am also concerned that the executive branch has not fully acknowledged the extent to which violations of FISC orders and the spirit of the law have already had a significant impact on Americans’ privacy.
Ultimately, details of these violations will come out, and are on their way out in some form already. If this press conference was designed solely to make us feel better, wouldn’t Obama have been better advised to come clean about these violations than to pretend they don’t exist?
There are so many apparent issues with the secret courts and its secret judges appointed secretly by the Chief Justice Roberts who is himself a life time appointee and therefore answerable to no one, here is a another I have not heard.
Why are those who are answerable to the public ( the congressional committee members) sworn to total secrecy? What is the point of oversight if it cannot bring injustices or abuses to America’s courts and American’s eyes.
They are working under conflicted oaths and conflicted responsibility. Any conflict of those responsibilities should err on the side of public openness.
That should be codified in law to protect them as protectors of the Constitution and the laws written under it..
Is there any mechanism, which has public or at least not sworn to secrecy oversight, to see if the decisions of the FISA court are actually carried out? If there is not, and if the overseers of that court cannot take their findings to the public, then the court isn’t just a rubber stamp, its effectively nonexistent.’
It protects federal employees who report misconduct. Federal agencies are prohibited from retaliating against those who do so. Acting otherwise violates federal law. It spurns constitutional protections.
On June 21, a federal complaint was unsealed. An accompanying affidavit remains secret.
United States v. Edward J. Snowden charges:
“Theft of Government Property
Unauthorized Communication of National Defense Information (and)
Willful Communication of Classified Intelligence Information to an Unauthorized Person.”
Hong Kong legislators responded. They urged Beijing to intervene on behalf of Snowden. Washington wants him detained. It wanted Hong Kong officials playing by US rules. It wants a provisional warrant issued. It wants him extradited for trial.
Hong Kong legislator Leung Kwok-hung urged Hong Kong residents to “take to the streets to protect Snowden.”
Labor party vice chairman Cyd Ho said China “should now make its stance clear to the Hong Kong SAR (special administration region) government” about doing so.
A Government Accountability Project statement said:
Snowden “disclosed information about a secret program that he reasonably believed to be illegal, and his actions alone brought about the long-overdue national debate about the proper balance between privacy and civil liberties, on the one hand, and national security on the other.”
Justice Department prosecutors had 60 days to file a formal indictment. Official extradition steps would follow. Snowden wisely chose Hong Kong. It’s an excellent safe haven refuge. According to MsExPat:
Six reasons explain why.
(1) Justice moves slowly and deliberately. It’s transparent. Cases typically take “a year from the Court of First Instance to the Court of Appeal, and another 3 years to the Court of Final Appeal.”
Snowden’s case is special. It’s not typical. Hong Kong authorities may “easily drag (it) on longer.”
So-called “Milkshake Murdress” Nancy Kissel “dragg(ed) out for 10 years.” Proceedings included a trial, appeal, re-trial, and another appeal.
“Word has it that Beijing may ‘solve’ the problem of what to do about Snowden in the easiest way possible – by encouraging the Hong Kong courts to take their time.”
“Not that Hong Kong courts ever need any encouragement to take their own good time – even a decade – making absolutely, positively sure that justice is served.”
(2) Snowden will feel right at home in Hong Kong. It’s “the Geek-friendliest city in the world.”
Besides excellent telecom connections, residents have wazoo and fiber optic broadband. It’s state-of-the art. It’s far cheaper than anything in America. It’s unaffected by censorship.
(3) Hong Kong residents support Snowden. Leung Kwok-hung led a protest on his behalf. He did so in front of the US consulate. Others followed. Expect more. Expect them to grow in size.
Snowden has growing numbers of friends. He hopes Hong Kong’s legal system will protect him. Russia may offer him asylum. Perhaps China and other countries.
Russia Today said Reuters quoted Icelandic businessman Olafur Vignir Sirurvinsson, saying:
“A private jet is in place in China and we could fly Snowden over tomorrow if we get positive reaction from the Interior Ministry.”
“We need to get confirmation of asylum and that he will not be extradited to the US. We would most want him to get a citizenship as well.”
“We need to play it as it comes, so we are basically ready for anything. We might need to go by boat for a bit, cars and planes will be involved.”
Icelandic Prime Minister David Gunnlaugsson confirmed ongoing “informal talks.” Icelandic journalist/WikiLeaks spokesperson Kristinn Hrafnsson’s involved on Snowden’s behalf.
According to Iceland’s Interior Ministry spokesperson:
“To apply for asylum in Iceland, the individual in question must be present in Iceland and make the application in his or her own name.”
US citizens may enter Iceland with no visa. They can immediately request asylum. The process can take a year.
Enormous US pressure could force Iceland to extradite him. It could happen well before his case is decided.
Snowden understands. He fears Washington could push Iceland “harder, quicker before the public could have a chance to make their feelings known, and I would not put that past the current US administration.”
Hong Kong justice operates deliberately. Snowden’s best chance is there. He chose it for that reason.
(4) Hong Kong’s “one of the most ambiguous political spaces in the world.”
It’s a “Special Administrative Region of the People’s Republic.” It reflects one country, two systems. They have different political and legal structures.
They have separate police, immigration and customs procedures and currencies. No one wins by acting hastily on Snowden, said MsExPat. Expect a long deliberative process. It could drag on for years.
(5) Hong Kong’s one of the world’s safest places. It’s the safest major city. It’s gun-free. Murders are so rare they capture headlines for weeks when they occur.
(6) Hong Kong’s the main haven for Chinese dissidents. Many human and civil rights lawyers reside there. Excellent representation is available. Snowden should have stayed.
“Most of these lawyers will be salivating” to defend Snowden. Because of his high-profile status and what’s at stake, they’ll do it “pro bono.”
He likely sought counsel on arrival. He probably did so before exposing NSA lawlessness. He’s less concerned about his own welfare than if what he did changes nothing.
Perhaps, at least that’s the way it’s being spun or maybe it’s another Wag the Dog…
President Vladimir Putin has said that Snowden can be granted asylum in Russia only if he stops leaking secrets.
A spokeswoman for the Federal Migration Service told the AP they had no information about the status of Snowden’s application for asylum.
Granting Snowden asylum would add new tensions to U.S.-Russian relations already strained by criticism of Russia’s pressure on opposition groups, Moscow’s suspicion of U.S. missile-defense plans and Russia’s resistance to sanctions against the regime of Syrian President Bashar Assad.
Obama’s waging war on freedom. He wants truth and full disclosure suppressed. He wants all whistleblowers silenced. He targeted more than all his predecessors combined. He did so ruthlessly, irresponsibly and lawlessly. He menaces everyone in the process.
A previous article called revealing vital truths exemplary patriotism. Snowden follows a noble tradition. He represents America’s best. He’s Obama’s eighth whistleblower charged under Espionage Act provisions.
Earlier ones included Socialist presidential candidate Eugene Debs, Industrial Workers of the World (IWW) founder Bill Haywood, social justice advocate Emma Goldman, journalist/author/socialist activist John Reed, political activist Max Eastman, civil rights leader Philip Randolph, and Social Democratic Party of America and its successor Socialist Party of America co-founder Victor Berger.
Previous Obama targets include Bradley Manning. He faces 22 charges. He pleaded guilty to 10 lesser ones. He denied 12 greater ones. Most serious is aiding the enemy. Doing so is treason. It’s a potential capital offense.
Crimes of war, against humanity and genocide demand disclosure. Manning was legally obligated to reveal them. He acted responsibly doing so.
Prosecuting him mocks rule of law justice. The ACLU called doing it unconstitutional. At issue is posting alleged intelligence information online. Prosecutors say doing so aids Al Qaeda. They don’t claim Manning did so intentionally.
They claim he “indirectly” did because documents he supplied appeared on WikiLeaks’ web site. Anyone can access it. So can Al Qaeda.
It states that “any person who gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.”
Article 104 isn’t limited to sensitive or classified information. It prohibits all unauthorized communications or contacts with the enemy – direct or indirect.
“The implications of the government’s argument are breathtaking,” said ACLU. Everyone is potentially vulnerable.
Included are whistleblowers, journalists, sources they use, editors they report to, lawyers they consult, others advising them, anti-war activists, bloggers, and anyone challenging government policies.
Sunshine’s a national imperative. Fundamental freedoms are threatened. They’re gravely compromised. Manning’s trial and others like it reflect Washington’s attempt to end them altogether.
Thomas Drake’s a former NSA official. He was indicted on multiple charges of “willful retention of classified information, obstruction of justice and making false statements.”
Charges alleged he gave Baltimore Sun reporter Siobhan Gorman classified NSA documents. She focused mainly on its “Trailblazer” project. She discussed illegal spying, waste and other abuses.
She called the scheme “the biggest boondoggle going on (at the time) in the intelligence community.” She said people have a right to know.
Drake said profiteers are incentivized to hype fears. Doing so benefits their bottom line priorities. Justice Department prosecutors tried to prosecute him.
They failed. Charges were dropped. He refused to “plea bargain with the truth.” He accepted a minor misdemeanor count for exceeding authorized use of a computer.
In January 2012, Obama’s Justice Department charged former CIA officer John Kiriakou. It did so for disclosing classified information to journalists, violating Intelligence Identities Protection Act provisions, and “lying” to CIA’s Publications Review Board.
He potentially faced longterm incarceration. In October 2012, he accepted plea bargain terms. They’re sought and/or accepted for lesser sentences. Innocent victims take them to avoid harsher treatment.
Kariakou pled guilty to one count of violating the Intelligence Identities Protection Act. Other Espionage Act charges were dropped. He got 30 months in prison.
Before sentencing, US District Court Judge Leonie Brinkema asked if he had anything to say. He declined. Brinkema added that “Perhaps you have already spoken too much.”
Separately, Kiriakou thanked supporters. He came “out of court positive, confident and optimistic,” he said.
“I’m headed to prison while the torturers and the lawyers who papered over it and the people who conceived it and the man who destroyed the proof of it, the tapes, will never face justice.”
“And that’s the saddest part of the story,” he added. Unconscionable crimes reflect official policy. Police states operate that way. America’s by far the worst.
Stephen Kim’s a former State Department contractor. In August 2010, he was charged with revealing classified information. He did so on North Korea to Fox News reporter James Rosen.
He was called an “aider, abettor and co-conspirator.” His phone records were monitored. They were obtained for a defined period. His emails were read. His personal movements were tracked. His constitutional rights were violated.
James Hitselberger’s a former Navy linguist. He worked as an Arabic translator. He’s charged with Espionage Act violations for providing classified information to Stanford’s Hoover Institution.
Shamai Leibowitz,’s a lawyer/blogger. He was a contract FBI Hebrew linguist. He monitored Israel’s Washington embassy wiretaps.
“During the course of my work,” he said, “I came across wrongdoings that led me to conclude this is an abuse of power and a violation of the law.”
“I reported these violations to my superiors at the FBI who did nothing about them. Thereafter, to my great regret, I disclosed the violations to a member of the media.”
He was concerned about a potential Israeli attack on Iran. He also learned about illegal Israeli influence-peddling. He told journalist Richard Silverstein.
He got 20 months in prison for doing so. His trial proceedings were so secret, the presiding judge didn’t know what he leaked.
He was indicted for allegedly providing him classified information. Risen provided detailed accounts of extraordinary rendition, torture and other type abuses.
Candidate Obama promised transparency, accountability, and reform. President Obama targeted more Whistleblowers than all his predecessors combined.
He did so unconstitutionally. He prioritizes police state harshness. Everyone’s vulnerable everywhere. There’s no place to hard. It bears repeating. He menaces humanity in the process. It may not survive on his watch.
Doesn’t this situation send a shiver down your spine? It is like something straight out of “1984.”
Big Brother and the Thought Police are already with us and they are manipulating us, readying us for the time when even to think will be a crime let alone to speak out against the State.
I urge you to to read “1984″ by George Orwell again (or for the first time), get a feeling of where we’re headed in the near future. Our values are being eroded as are our freedoms and all that lies ahead for us is slavery.
“Miłosz studies four of his contemporaries and the self-delusions to which they fell prey on their journey from autonomy to obedience, emphasizing what he calls the intellectuals’ need for “a feeling of belonging.”
The situation is getting serious. Each new event that upsets the oligarchs brings new demands for changes to the law. The FEMA “relocation camps” are ready, the dissenters are already being targeted.
How long will it be before social networking sites are closed down and people are stopped from discussing politics or anything else that the State does?
Be very afraid, friends. What is coming is very bad. We must join together and try to stop it while we can.
I call on all American citizens to rise up and insist on repeal of the Espionage Act immediately. We have little time to waste. The Assange and Snowden assault is theater of a particularly deadly kind, and America will not recover from the use of the Espionage Act as a cudgel to threaten journalists, editors and news outlets with. I call on major funders of Feinstein’s and Lieberman;s campaigns to put their donations in escrow accounts and notify the staffers of those Senators that the funds will only be released if they drop their traitorous invocation of the Espionage Act.
I call on all Americans to understand once for all: this is not just about Julian Assange and other whistleblowers. This, my fellow citizens, is about you!
Are the president’s prosecutors criminalizing national security reporting?
The Obama Justice Department’s crusade against leakers just took a quantum leap—and it’s extremely worrisome.
It’s one thing to go after officials who leak classified information to the press. The Obama administration has gone after more whistleblowers and the journalists than all previous administrations combined! Nonetheless, officials with security clearances sign a contract pledging not to share material with the outside world—and they know they could face criminal penalties if they do. (Daniel Ellsberg figured he might go to prison for leaking the Pentagon Papers and was willing to make the sacrifice.)
However, it’s something else entirely to go after a reporter who receives the leak. That’s what federal prosecutors are doing to James Rosen, the chief Washington correspondent for Fox News. And they’re going after him not as a witness to a crime—nor as a pressure tactic to get him to give up his source (in this case, the source has already been caught)—but rather, in the words of a Justice Department affidavit, as “an aider, an abettor, and/or a co-conspirator”: in short, as someone who might be indicted under the Espionage Act.
This has never happened in this country. (Even in the Pentagon Papers case, several newspapers were served injunctions not to publish stories, but no reporter or editor was ever investigated, much less tried, as a co-conspirator.)
If the prosecutors go through with their threat, the entire enterprise of national security journalism—which inherently involves uncovering secrets, to some degree—will be in jeopardy.
A similar case occurred in 2006, during George W. Bush’s presidency. In Lawrence Franklin espionage scandal – U.S. v. Lawrence Anthony Franklin, et al., prosecutors indicted a Pentagon official and two policy analysts with AIPAC under the federal espionage statute. The official, Larry Franklin, was charged with leaking classified information. (He pleaded guilty and served a brief sentence.) The two AIPACanalysts, Steven Rosen and Keith Weissman, were charged simply with receiving it.
The section of the indictment titled “Ways and Means of the Conspiracy” found that Rosen and Weissman:
“… would cultivate relations with Franklin and others and would use their contacts within the U.S. government and elsewhere to gather sensitive information, including classified information, relating to national defense, for subsequent unlawful communication, delivery and transmission to persons not entitled to receive it.”
Those final words are worth noting. They were charged with giving classified information not to foreign governments or spies but simply “to persons not entitled to receive it.”
Also noted in a Slate column at the time, “This is what journalists do routinely every day. They receive information from insiders, write it up in a story, send it to editors, who publish it in newspapers, magazines, wire services, or on Web sites … which are seen by readers who have not been officially authorized to view that classified material.”
If Rosen and Weissman were prosecuted for joining in a “conspiracy” with Franklin on the grounds that they’d received classified material, then the New York Times, Washington Post, The New Yorker, or any number of other publications could be next.
The presiding U.S. District Court judge, T.S. Ellis, made this same inference, noting that the law “applies to academics, lawyers, journalists, professors, whatever.” In the end, though, Ellis dismissed the indictment against the AIPAC analysts for precisely that reason, noting that the statute was too vague, broad, and draconian. (For a jaw-dropping list of all the activities prohibited by the federal espionage statute, click here.)
Now, though, President Obama’s prosecutors are pushing the logic of the AIPAC case to its absurd extreme: They’re labeling a reporter who received classified information as a criminal abettor or co-conspirator.
Rosen’s Fox News story, which appeared in June 2009, did contain serious, possibly damaging intelligence information. It reported that North Korea was likely to respond to some United Nations sanctions, which had just been handed down, by conducting a nuclear-weapons test. It also reported that the CIA learned of this from sources inside North Korea.
The key fact, from a prosecutor’s viewpoint, was that any North Korean official reading this story would now know that the CIA had sources inside North Korea—and that the source (whether it was a human spy, a phone tap, or whatever) would subsequently be shut down, one way or another.
Rosen’s source for the story was Stephen Jin–Woo Kim, a State Department adviser and one of a small number of officials who received a top-secret memo about the CIA finding. Few dispute the Justice Department’s right to prosecute Kim, who did break his security pledge (though many are critical of how often, and how relentlessly, the Obama administration pursues leakers). One might also criticize Rosen or his editors for not writing the story in a way that finessed the fact that the information came from a source inside North Korea. But that’s different from arresting him under the Espionage Act.
It’s possible that the prosecutors won’t indict Rosen, that they called him a criminal co-conspirator in their court affidavit in order to boost the chances that the judge would approve their request to track his email, phone calls, and movements. However, even if that is the case, it’s a dangerous game. Some future prosecutor could use the Rosen affidavit as a precedent to go all the way, to treat some similar reporter—potentially all reporters on the national security beat—as criminal conspirators.
During the Franklin trial back in 2006, Viet Dinh, a former Bush Justice Department lawyer who’d helped write the Patriot Act, filed a “memorandum of law” in support of the AIPAC analysts’ motion to dismiss their indictment. Dinh wrote that the espionage statute had never been applied to recipients of classified information—and that its language is so vague that recipients had no way of knowing whether they were breaking the law.
It would be ironic if we have to rely on a Bush lawyer’s reasoning to block Obama’s prosecutors from going too far.
When the government wants to get a journalist’s or any citizen’s e-mails or phone records does not mean prosecution. A journalist, however, is not very different from other citizens in the eyes of the law when it comes to the government seeking records from a third-party provider such as Google or a phone company.
Applying labels such as co-conspirator provides a probable cause for the judge to grant the warrant, as in the Rosen case. IfRosen offered money or some other reward, it might be a different case. I believe the First Amendment covers the right to publish information, but it does not grant blanket immunity for how that information is gathered.
In 1917, some two months after America’s formal entrance into World War I against Germany, the United States Congress passes the Espionage Act.
Enforced largely by A. Mitchell Palmer, the United States attorney general under President Woodrow Wilson, the Espionage Act essentially made it a crime for any person to convey information intended to interfere with the U.S. armed forces prosecution of the war effort or to promote the success of the country’s enemies. Anyone found guilty of such acts would be subject to a fine of $10,000 and a prison sentence of 20 years.
The Espionage Act was reinforced by the Sedition Act of the following year, which imposed similarly harsh penalties on anyone found guilty of making false statements that interfered with the prosecution of the war; insulting or abusing the U.S. government, the flag, the Constitution or the military; agitating against the production of necessary war materials; or advocating, teaching or defending any of these acts. Both pieces of legislation were aimed at socialists, pacifists and other anti-war activists during World War I and were used to punishing effect in the years immediately following the war, during a period characterized by the fear of communist influence and communist infiltration into American society that became known as the first Red Scare (a second would occur later, during the 1940s and 1950s, associated largely with Senator Joseph McCarthy). Palmer–a former pacifist whose views on civil rights radically changed once he assumed the attorney general’s office during the Red Scare–and his right-hand man, J. Edgar Hoover, liberally employed the Espionage and Sedition Acts to persecute left-wing political figures.
One of the most famous activists arrested during this period, labor leader Eugene V. Debs, was sentenced to 10 years in prison for a speech he made in 1918 in Canton, Ohio, criticizing the Espionage Act. Debs appealed the decision, and the case eventually reached the U.S. Supreme Court, where the court upheld his conviction. Though Debs’ sentence was commuted in 1921 when the Sedition Act was repealed by Congress, major portions of the Espionage Act remain part of United States law to the present day.
Penatgon Papers Lawyer James Goodale: It’s Time for Eric Holder to Resign
The attorney general’s conduct in trying to pass off the James Rosen subpoena as falling under the Espionage Act proves that he is abusing his office. Pentagon Papers lawyer James Goodale has seen this before—in Richard Nixon.
Attorney General Eric Holder should resign for his role in the James Rosen case. He signed off on a search warrant to Rosen, a Fox News Reporter. This warrant treated Rosen as a common criminal.
The basis for obtaining the warrant was that Rosen had conspired with Kim to violate the Espionage Act. That Act does not apply to Rosen. It does however, in the government’s view, apply to Kim. It should be clear to anyone that Holder has run an end run around the Espionage Act by his actions. While Rosen is not subject to the Espionage Act, Kim is. But Rosen might as well be subject to the Act if he can be held responsible for Kim’s actions.
The reason the Espionage Act does not apply to Rosen is that it does not apply to those who publish (or broadcast) information leaked to them. In the Pentagon Papers case, the government asserted initially the Espionage Act did apply to The New York Times, the paper that published parts of the Vietnam Archives leaked to it by Daniel Ellsberg.
If a reporter steps over the line drawn by the Justice Department, he or she may become a criminal. In short, the government has criminalized the newsgathering process.
When, however, the Times proved to the District Court Judge Murray Gurfein that the word “publish” had intentionally been left out of the Act, Gurfein concluded that the Act was inapplicable. Thereafter, the government dropped its use of the Espionage Act and it never appeared in its case again—even at the Supreme Court.
In its affidavit for a search warrant, the government asserted that Rosen had cajoled Kim into violating the Act by trying to get Kim’s story out of him. Any reporter will quickly recognize that Rosen’s efforts are customary newsgathering practices used by all reporters. News does not come over the transom; reporters have to work hard to get it.
The government has now put itself in the position of setting standards for what reporters can and cannot do when they talk to those who have access to classified information. If a reporter steps over the line drawn by the Justice Department, he or she may become a criminal. In short, the government has criminalized the newsgathering process.
Holder’s actions should come as no surprise to those who have been following him closely. Rosen is not the only journalist Holder thinks is a criminal. He is also pursuing Julian Assange, the founder of WikiLeaks. Pfc. Bradley Manning leaked classified information to Assange.
While little noticed, a grand jury was empanelled to indict Julian Assange in 2010, initially seeking charges under the Espionage Act. Holder however, later announced “there were problems” using the Espionage Act for this purpose. Presumably Holder’s problem was that the Espionage Act did not apply to the publication by Assange of Manning’s leaked information on Assange’s website.
Thereafter, Justice Department officials let it be known that the grand jury was proceeding on a “theory” that Assange conspired with Manning to leak to Assange. Assange had also made the leaked information available to Der Spiegel, Le Monde, El Pais and the Guardian. Later the Guardian shared this information with the New York Times, and all of them published parts of the leaked information, as did Assange on his website.
In December 2010, when the Committee to Protect Journalists learned Holder had switched to a conspiracy theory, it wrote a letter to President Obama not to prosecute Assange because such prosecution would criminalize newsgathering. The Committee pointed out to Obama that Assange was a journalist protected under the First Amendment and should not be treated as a co-conspirator. But little did the Committee to Protect Journalists know that Holder had used the conspiracy theory seven months before in May 2010 when he approved the use of the search warrant for Rosen’s records.
As far as anyone can tell, this grand jury is still alive. Assange’s lawyers believe it has already secretly indicted him. They think that as soon as Assange leaves the Ecuadorean Embassy where he is holed up, he will be faced with the indictment in the U.S. for conspiring with Manning.
Asking courts to treat journalists as criminals under the Espionage Act has only been asserted once before Holder started using it. President Richard M. Nixon used it against New York Times reporter Neil Sheehan, who obtained the Vietnam Archives from Daniel Ellsberg. Following the Pentagon Papers case, Nixon convened a grand jury to indict Sheehan for conspiring to cause the leak of the Pentagon Papers. Nixon failed in this effort and the grand jury disbanded after 17 months.
The difference between Nixon and Holder is that Nixon failed in his effort to treat Sheehan as a co-conspirator. Nixon therefore could not create the precedent that reporters could be treated as criminals. Holder has. He should resign!
Karl Rove: Prosecute ‘people who break their oath’ by leaking secrets
Fox News on Monday asked former Bush White House senior adviser Karl Rove, who participated in leaking the name of CIA agent Valerie Plame in 2003, to comment on the Obama administration’s decision to investigate Fox News reporter James Rosen as a co-conspirator in leaking CIA documents.
The Washington Postreported on Monday that the FBI had accused Rosen of illegally soliciting information about North Korea from government adviser Stephen Jin-Woo Kim in 2009. The FBI allegedly searched Rosen’s emails and tracked him as he used a key card to enter and exit the State Department.
In a statement, Fox News executive VP of news Michael Clemente called the investigation “downright chilling” and “promised to unequivocally defend” Rosen.
Rove told Fox News host Megyn Kelly on Monday that “every American has sympathy for the release of confidential secret information of the government” but that the news about Rosen was “deeply troubling.”
“The focus should be on the people who break their “oath” (?) and put the American people at risk, not on reporters who gather this information,” Rove explained. “That should not be the focus of these investigations.”
“We had to confront this question during the Bush administration. There were leaks of classified information and in each and every instance, the focus was on the potential leak, not the reporter who received it,” he continued. “Can you imagine what would have happened if The New York Times, which was the recipient of a number of those confidential leaks, if the Bush administration had asked for the phone records — secretly asked for the phone records of up to 100 of editors and reporters at The New York Times?”
Kelly reminded Rove that he had a role in leaking Valerie Plame’s identity, and that former New York Times reporter Judy Miller — who now works for Fox News — was jailed for 85 days for refusing to testify against I. Lewis “Scooter” Libby, former Vice President Dick Cheney’s Chief of Staff.
But Kelly argued that this case was different because the Department of Justice had obtained Rosen’s emails instead of jailing him for contempt.
Formation 1963 Legal status 501(c)(4) President Michael Kassen Budget $67 million Website aipac.org
While prosecutors said several 2009 court rulings would have made it almost impossible to obtain a guilty verdict and forced disclosure of large amounts of classified information, defense lawyers and some legal experts said the government was wrong in the first place for trying to criminalize the kind of information horse-trading that long has occurred in Washington. Steve J. Rosen, AIPAC’s then-policy director, said he met with senior government officials all the time.
Two top officials at the State Department’s Diplomatic Security Service (DS) — the federal law enforcement agency that protects American diplomats and investigates allegations of criminal misconduct by State Department employees — gave sworn testimony earlier this year that appears to be evasive at best, and untrue at worst, according to evidence obtained by Fox News.
The officials are Scott Bultrowicz, who until Feb. 1 served as director of DS, and Tracy H. Mahaffey, who remains the executive director of DS. In videotaped depositions conducted this past February, Bultrowicz claimed not to know about any claims by a federal agency that DS officials have failed to follow proper procedures; and Mahaffey claimed not to know about any pending investigations into DS.
Yet Fox News has obtained meeting notes, draft reports and other evidence that suggest both officials were aware, at the time they were deposed, of a pending investigation into DS and its operations by the State Department’s Office of Inspector General (OIG). What’s more, both officials had been apprised of the OIG’s preliminary finding that DS did indeed fail to follow proper procedures in at least eight cases, and possibly more, because of “undue influence” and “pressure” brought to bear by senior State Department officials to halt internal investigations.
If these folks lied under oath, they are just following the example set by top U.S. government officials like Eric Holder and James Clapper.
Clapper’s defense: it depends on what the meaning of the word is collect is. By saying we don’t “collect” data on Americans, I didn’t mean “collect,” you see, I meant “look at.” (Maybe it depends on the definition of the word “wittingly”!)