James C. Goodale's Blog
November 1, 2013
Is the NSA on Autopilot?
Does Obama agree with Kerry that the NSA is on autopilot?
Even James Woolsey, former CIA director, agrees the NSA went over the line.
But when is Obama going to comment? Will he agree with Senator Feinstein that nothing should be done?
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October 16, 2013
New York Times Reporter Loses Again
As expected, James Risen lost his appeal to the Fourth Circuit of the decision that he must disclose his source. The decision was announced today in the NYT: “Court Rejects Appeal Bid by Writer in Leak Case.”
As I suggested in my book “Fighting for the Press: the Inside Story of the Pentagon Papers and Other battles,” it is becoming more probable that we will face the spectacle of President Obama putting Risen in Jail.
BUY THE BOOk at CUNY, AMAZON or B&N
Risen isn’t any old reporter. He is the one who won the Pulitzer Prize for breaking the NSA story in 2006.
Click to listen to Marty Moss-Coane’s interview with me on WHYY public media in Philadelphia: “The Inside Story of Press Freedom.” October 11,2013.
Click also to listen to a recent show I did with Moose Miller on CBS Minnesota: feed://podcastrss.play.it/steele-talkin-with-jearlyn-steele_mp3_128.xml
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August 21, 2013
Manning’s Sentence is too Long
Manning’s 35 year sentence is too long since claims of damage to national security from his leaks seem speculative at best.
Manning’s leaks can roughly be divided into three parts: diplomatic cables, Iraq War information and Afghan War Logs. Of the three, leaks of the War Logs received the most criticism.
The principal claim was that these logs disclosed secret Afghan sources. The fear was that by exposing them, they would be subject to mortal danger.
At Manning’s trial, however, it turned out the leaks had not identified Afghan sources after all. The War Logs identified 40 Afghans who were opposing the Taliban and could be counted on for support.
Their identification could have come as no surprise to the Taliban. More to the point, none of the 40 suffered any harm as a consequence of the leaks.
At the trial, however, the government claimed that one of the 40 had been killed. The defense objected that the supporter who had been killed was not one of the 40 identified. And after being challenged by the defense, the government withdrew its claim.
While one cannot properly generalize from this one incident, it seems to be typical of the claims the government made that were not borne out by the evidence.
That being so, the 20 years in effect Manning agreed to serve before this phase of the trial seems adequate. The court added 15 years to the earlier 20 for a total of 35. This is too much.
As noted here before, these extra 15 years is just another example of the government piling on in the many leak cases it has brought. Obama has brought six of these cases, twice as many as all the other Presidents in the history of the United States combined.
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August 15, 2013
Are Obama’s Politics Stranger Than Fiction?
The best that can be said about Obama’s performance on the NSA matter is that it is very strange.
When Snowden’s leak became public, the President welcomed debate on the NSA programs Snowden disclosed. There was particular interest in the NSA program that collected metadata of U.S. home users.
Under this program, purportedly authorized by the Patriot Act, the government collects metadata on virtually all telephone calls. When it wants to search this database, it gets authority from the FISA (surveillance) court.
This search not only turns up first level of calls made by someone who has been searched, but also underlying calls made by those who are not subject to the search such but who have made calls to others, and also at a third level of such callers.
While Obama called for a debate, before it got started Obama went on the Charlie Rose to squelch it. He said, in his opinion, the metadata was legal. Coming from a former constitutional law professor, this statement was hardly meant to encourage debate.
Worse than that, when in fact a debate about the program broke out on the floor of the House of Representatives, he quickly used the power of the presidency to stop that debate too. House liberals and Republican libertarians proposed an amendment to FISA which would limit searches of the metadata base to those relating to an on-going investigation.
As it is well-known, this motion only lost by five votes and, more to the point, only after Obama had marshaled Democratic voices led by Nancy Pelosi to kill the Bill. Apparently, Obama’s idea of a debate was one that backed whatever he was doing, rather than suggesting any changes.
It is well to remember that the program Obama is defending is not his, but was originated by George W. Bush. In fact, when Obama ran for President in 2008, he called for an end to this program, or at least, to narrow it.
In a press conference on Friday, August 8, 2013, the President said he would consider a public advocate for the FISA court, but otherwise defended the metadata program.
If he persists in his defense of the program, and if congress pushes to amend it, he will be in the position of defending a George W. Bush program against the wishes of congress. Stranger things have happened in politics, but this is right up there.
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June 7, 2013
Is This A New Story?
The story that led the New York Times on Friday, June 7, 2013, and a comparable story on June 6 based on Glenn Greenwald’s articles in the Guardian should not surprise anybody. The “secrets” that follows in these stories about NSA activities were known by many in the public or at least should have been known.
The first story which covered the government’s access to the telephone records of apparently all Americans was covered extensively in Jim Bamford’s book The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America. I did a TV program with Jim on February 22, 2009 “Is Big Brother Reading Our Emails?” Feb. 22, 2009 which covered every detail in Greenwald’s story.
The second story which is headlined above, is about Prism. This program covers the monitoring of foreign emails and phone calls when they are connected to a domestic source. Senators Wyden and Udall have been critical of this program because large quantities of domestic email is monitored by the government. Technically it appears the government can only rightly monitor such Internet traffic when it is “incidental” to the main purpose which is obtaining access to foreign communication.
This program should come as no surprise to those who remember James Risen story of December 16, 2005 entitled “Bush Lets U.S. Spy on Callers Without Courts.” This story was part of a series written by Risen and Lichtblau which won the Pulitzer Prize in 2006. This series became notorious because the New York Times held it for a year after President G. Bush told the Times if it published it, the Times would have “blood on its hands.” When the Times published the series there was a tremendous furor. There were many who thought the Times badly damaged national security.
I believe there is very little difference in the story about Prism headlined above and the Risen story of December 16.
What apparently happened after the Risen/Lichtblau series was published was that Bush II continued the program about which Risen wrote and legalized it (actually Congress did this) by requiring the program be taken to the FISA court for approval. It seems at the same time perhaps, the phone “tapping” program was created.
The government always claims that every leak damages national security but invariably those claims do not turn out to be true. I have noted previously how this phenomenon played out in the original story by Risen on page 200 of my book Fighting for the Press: the Inside Story of the Pentagon Papers and Other Battles.
It is ironic that Obama, who once criticized the Bush administration for its secret domestic spying program, is now asking for a national debate on a leak of substantially the same information
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May 30, 2013
Holder Should Resign
Because I did over 50 interviews in the last two weeks on my book, I have not been able to blog as regularly as I would like. These interviews came as a result of the conclusion in my book that Obama may be worse than Nixon when it comes to national security press matters.
Today I have written a piece for the Daily Beast on why Eric Holder should resign. The reason is he is the first person ever in authority in the history of the United States to successfully characterize journalists as criminals. Much of the material in the article is based on the chapters of my book about Obama.
The President and his Attorney General have come under heavy attack for subpoenaing Associate Press behind AP’s back and characterizing Fox News reporter James Rosen as a co-conspirator in publishing a leaked story about North Korea’s nuclear plans.
In the case of Rosen, Holder alleged he had conspired with the leaker, a State Department consultant Stephen Kim.
Holder signed off on the warrant to search Rosen’s records and he said the reason for the warrant was because Rosen had conspired with Kim. Today the Associate Press said they would not attend an off-the-record meeting with Holder to discuss their differences. Holder wants to consider changes to the Attorney General’s guideline that cover the issuance of subpoenas to the press. AP does not want to be a participant in this discussion unless it is public.
Both Obama and Holder have tried to tamp down the controversy over the AP and Rosen subpoenas. At least for today, it does not appear they are going to be successful. I predicted much of this in my book and so I have been very much in demand.
http://www.thedailybeast.com/articles/2013/05/14/is-obama-worse-for-press-freedom-than-nixon.html
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May 9, 2013
Obama’s Obsession With Secrecy
Yesterday, Harold Koh, former legal advisor to the State Department, criticized President Obama for the use of secrecy to cover up the truth about his drone program. He said that Obama Administration should let the public and Congress know details of the program to rebut the perception that the program is not lawful.
He was particularly critical of the decision made not to permit testimony before Congress by officials familiar with the program. Earlier this year, Jeh C. Johnson, former top Pentagon lawyer, made the same criticism noting however, that “It is much easier to classify something than to declassify it.”
Harold Koh is not any old lawyer. He is the former Dean of Yale Law School and a one time member of Human Rights Watch. A civil libertarian, he was put in the awkward position of approving Obama’s drone program.
Obama’s resistance to lifting the veil of secrecy on the drone program, follows a pattern of his previous actions on national security secrets and their disclosure. For example, He has indicted six leakers for leaking classified information. In the previous history of this country there had been only three such indictments.
In 2010, Obama classified an astounding 30 million documents. Presidential obsession with secrecy always ends badly. In the case of Richard Nixon, his obsession with secrecy led to his break-in of the office of Daniel Ellsberg’s psychiatrist. This is turn led to Nixon’s downfall.
The same can be said of the Pentagon Papers case where his over-zealous desire to keep information secret resulted in a stunning defeat for his presidency from which he never recovered.
Ex Lawyer in State Department Criticizes Drone Secrecy: http://www.nytimes.com/2013/05/09/world/former-top-lawyer-in-state-dept-criticizes-drone-secrecy.html?_r=0
It’s a bad time for press freedoms:http://www.cjr.org/critical_eye/qa_with_goodale_obama_press_fr.php
Pentagon Papers lawyer on Obama, secrecy and press freedoms: ‘worse than Nixon’:
http://www.guardian.co.uk/commentisfree/2013/mar/19/goodale-obama-press-freedoms-secrecy-nixon
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May 1, 2013
Publication Day
Yesterday was a big day for me. It was “publication day.” This is the day my book was officially published. The book has already had an active life on the Internet over the last many weeks and there has been much interest in it. Nonetheless, the official “publication day” is a big day in the life of the author.
The feedback I’ve had on the book has been excellent. Many who have read it called me to say that it is a page turner and have read at least half the book in a couple of days. Lorin Stein, the editor of the Paris Review, for example, called to say, “It was just a great read.”
I’ve intentionally written a book for regular readers who may not be lawyers, so they can enjoy the thrill of an exciting drama that happens to take place in courtrooms.
At the same time, I believe that if any such reader wishes to take the time to think about the lessons of this dramatic tale, they are free to do so. And finally if scholars wish to plow through the 40 pages of footnotes, they will see that my view of the history of the Pentagon Papers case is unique.
For those who have taken the time to think about the case, they will realize the claims the government made of damage to national security simply won’t hold up in the light of history. The question that should come to mind at that point would be, why does the government have so much paranoia about keeping everything secret?
The answer may be that the government cannot rationally distinguish secret information from that which is only confidential. Consequently it classifies information “secret” which should not be “secret” at all.
All of the above is particularly relevant today to Obama’s multi-faceted efforts to keep information secret and to prosecute those who have leaked it. One wonders whether Obama has learned anything from the Pentagon Papers case.
Additionally, Obama seeks to indict Julian Assange. He empanelled a grand jury in December 2010 to do this. I have written this book in part as a clarion call to all, and particularly to journalists, to ensure that a prosecution, initiated by such grand jury does not go forward. The grand jury has been quiet for a long time. But the best we can tell, it is still active and my hope is that this book will help to extinguish it.
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April 25, 2013
WikiLeaks Emerges
Everyone has been wondering where WikiLeaks has gone. It suddenly emerged earlier this month, posting one billion words of cables sent by Henry Kissinger in the 1970s, “The Kissinger Cables.”
These cables cover the years 1973-1976 when Henry Kissinger served as Secretary of State. They were taken from the National Archives, where they had been sitting declassified by the U.S. in 1.7 million separate pdf files. There was no way to search them. Once the files were posted on WikiLeaks, they became searchable.
But the question remains, where has WikiLeaks been? The simple answer is, in the Ecuadorean Embassy in London. That’s because that is where Julian Assange, the founder of WikiLeaks, has been holed up ever since he lost his appeal to be extradited to Sweden to face sex charges.
He sought asylum in the Ecuadorean Embassy since he believes once he goes to Sweden he will be extradited to the United States to face criminal charges for leaking documents on WikiLeaks relating to the Afghan and Iraq Wars.
In December 2010, the Obama Administration empanelled a grand jury to consider indicting Assange. In the last six months, the U.S. government has told courts twice the grand jury is still continuing its investigation.
One of the charges the grand jury is investigating is the release of classified diplomatic cables on WikiLeaks. Most of these same cables were published by the New York Times on its website.
The publication of these cables at first resulted in angry denunciation by Senators Feinstein and Lieberman that the New York Times and Assange had “blood on their hands” for damaging national security.
Secretary of State Robert Gates, however, after giving the matter full reflection, concluded that the release of the diplomatic cables was “harmless.” Indeed, the posting of the Kissinger cables last week by WikiLeaks is just as harmless as the earlier posting of those cables which angered Senators Feinstein and Lieberman.
Often (if not almost always) claims of damage to national security, such as those made by Senators Feinstein and Lieberman, turn out to be overstated.
https://www.wikileaks.org/plusd/pressrelease/
https://www.wikileaks.org/plusd/about/
http://www.theatlanticwire.com/national/2013/04/wikileaks-kissinger-cables/63975/
http://www.ibtimes.com/wikileaks-going-soft-its-kissinger-cables-release-1178821#
http://therealnews.com/t2/index.php?option=com_content&task=view&id=31&Itemid=74&jumival=10062
http://rt.com/usa/assange-kissinger-cables-wikileaks-500/
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April 10, 2013
Lunch with David Kahn
Let me tell you about one of the more interesting lunches I have had recently relating to my book. It was with David Kahn, the author of “The Code Breakers,” long thought to be one of the most authoritative books on how governments break codes.
I got to know David many years ago in the course of the Pentagon Papers case when I engaged him to be a witness in that case (it turned out that I did not need him). I was concerned the Nixon Administration would accuse the New York Times of breaking codes. (I was correct in this concern – see my book.)
I asked David with all his experience with espionage, could he think of one instance where it had been proven that a national security leak had in fact damaged national security.
He looked at me with great surprise and said, “Why haven’t I thought of that before. What an interesting question?”
There was a pause while David thought. Finally, his response was, “No.” I said, “David, not one?” He said, “Not one.”
Think of the significance of this remark. Here is an expert who has spent all his working life studying national security (through the lens of code breaking), and he could not think of one example.
In my book, I conclude that Richard Nixon’s claims that publication of the Pentagon Papers breached national security in sum amounted to so much hot air. But is it possible that this conclusion as applied to all government claims ever made against the leaks of classified information are equally fatuous?
That seems like an extravagant statement, but it certainly is a question to ponder. Here is a picture of David and me following our lunch.
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