Published on Portside (http://portside.org)
Wikileaks Was Just a Preview: We're Headed for an Even Bigger Showdown Over Secrets
March 24, 2013
Friday, March 22, 2013
I went yesterday to a screening of We Steal Secrets, Oscar-winning director Alex Gibney's brilliant new documentary about Wikileaks. The movie is beautiful and profound, an incredible story that's about many things all at once, including the incredible Shakespearean narrative that is the life of Julian Assange, a free-information radical who has become an uncompromising guarder of secrets.
I'll do a full review in a few months, when We Steal Secrets  comes out, but I bring it up now because the whole issue of secrets and how we keep them is increasingly in the news, to the point where I think we're headed for a major confrontation between the government and the public over the issue, one bigger in scale than even the Wikileaks episode.
We've seen the battle lines forming for years now. It's increasingly clear that governments, major corporations, banks, universities and other such bodies view the defense of their secrets as a desperate matter of institutional survival, so much so that the state has gone to extraordinary lengths to punish and/or threaten to punish anyone who so much as tiptoes across the informational line.
This is true not only in the case of Wikileaks – and especially the real subject of Gibney's film, Private Bradley Manning, who in an incredible act of institutional vengeance is being charged with aiding the enemy (among other crimes) and could, theoretically, receive a death sentence .
Did the Mainstream Media Fail Bradley Manning? 
There's also the horrific case of Aaron Swartz , a genius who helped create the technology behind Reddit at the age of 14, who earlier this year hanged himself after the government threatened him with 35 years in jail for downloading a bunch of academic documents from an MIT server. Then there's the case of Sergey Aleynikov , the Russian computer programmer who allegedly stole the High-Frequency Trading program belonging to Goldman, Sachs (Aleynikov worked at Goldman), a program which prosecutors in open court admitted could, "in the wrong hands," be used to "manipulate markets."
Aleynikov spent a year in jail awaiting trial, was convicted, had his sentence overturned, was freed, and has since been re-arrested by a government seemingly determined to make an example out of him.
The Brilliant Life and Tragic Death of Aaron Swartz 
And most recently, there's the Matthew Keys case, in which a Reuters social media editor was charged by the government with conspiring with the hacker group Anonymous to alter a Los Angeles Times headline in December 2010. The change in the headline? It ended up reading , "Pressure Builds in House to Elect CHIPPY 1337," Chippy being the name of another hacker group accused of defacing a video game publisher's website.
Keys is charged with crimes that carry up to 25 years in prison, although the likelihood is that he'd face far less than that if convicted. Still, it seems like an insane amount of pressure to apply, given the other types of crimes (of, say, the HSBC variety) where stiff sentences haven't even been threatened, much less imposed.
A common thread runs through all of these cases. On the one hand, the motivations for these information-stealers seem extremely diverse: You have people who appear to be primarily motivated by traditional whistleblower concerns (Manning, who never sought money and was obviously initially moved by the moral horror aroused by the material he was seeing, falls into that category for me), you have the merely mischievous (the Keys case seems to fall in this area), there are those who either claim to be or actually are free-information ideologues (Assange and Swartz seem more in this realm), and then there are other cases where the motive might have been money (Aleynikov, who was allegedly leaving Goldman to join a rival trading startup, might be among those).
But in all of these cases, the government pursued maximum punishments and generally took zero-tolerance approaches to plea negotiations. These prosecutions reflected an obvious institutional terror of letting the public see the sausage-factory locked behind the closed doors not only of the state, but of banks and universities and other such institutional pillars of society. As Gibney pointed out in his movie, this is a Wizard of Oz moment, where we are being warned not to look behind the curtain.
What will we find out? We already know that our armies mass-murder women and children  in places like Iraq and Afghanistan, that our soldiers joke about smoldering bodies  from the safety of gunships, that some of our closest diplomatic allies  starve and repress their own citizens, and we may even have gotten a glimpse or two of a banking system that uses computerized insider trading programs  to steal from everyone who has an IRA or a mutual fund or any stock at all by manipulating markets like the NYSE.
These fervent, desperate prosecutions suggest that there's more awfulness under there, things that are worse, and there is a determination to not let us see what those things are. Most recently, we've seen that determination in the furor over Barack Obama's drone assassination program and the so-called "kill list" that is associated with it.
Weeks ago, Kentucky Senator Rand Paul – whom I've previously railed against as one of the biggest self-aggrandizing jackasses in politics – pulled a widely-derided but, I think, absolutely righteous Frank Capra act  on the Senate floor, executing a one-man filibuster of Obama's CIA nominee, John Brennan.
Paul had been mortified when he received a letter from Eric Holder refusing to rule out drone strikes on American soil  in "extraordinary" circumstances like a 9/11 or a Pearl Harbor. Paul refused to yield until he extracted a guarantee that no American could be assassinated by a drone on American soil without first being charged with a crime.
He got his guarantee, but the way the thing is written doesn't fill one with anything like confidence. Eric Holder's letter to Paul  reads like the legal disclaimer on a pack of unfiltered cigarettes:
Dear Senator Paul,
It has come to my attention that you have now asked an additional question: "Does the president have the additional authority to use a weaponized drone to kill an American not engaged in combat on American soil?" The answer is no.
You could drive a convoy of tanker trucks through the loopholes in that letter. Not to worry, though, this past week, word has come out via Congress – the White House won't tell us anything – that no Americans  are on its infamous kill list. The National Journal's report on this story offered a similarly comical sort of non-reassurance:
The White House has wrapped its kill list in secrecy and already the United States has killed four Americans in drone strikes. Only one of them, senior al-Qaida operative Anwar al-Awlaki, was the intended target, according to U.S. officials. The others – including Awlaki's teenage son – were collateral damage, killed because they were too near a person being targeted.
But no more Americans are in line for such killings – at least not yet. "There is no list where Americans are on the list," House Intelligence Chairman Mike Rogers told National Journal. Still, he suggested, that could change.
"There is no list where Americans are on the list" – even the language used here sounds like a cheap Orwell knockoff (although, to be fair, so does V for Vendetta, which has unfortunately provided the model for the modern protest aesthetic ). It's not an accident that so much of this story is starting to sound like farce. The idea that we have to beg and plead and pull Capra-esque stunts in the Senate just to find out whether or not our government has "asserted the legal authority" (this preposterous phrase is beginning to leak into news coverage with alarming regularity) to kill U.S. citizens on U.S. soil without trial would be laughable, were it not for the obvious fact that such lines are in danger of really being crossed, if they haven't been crossed already.
This morning, an Emory University law professor named Mary Dudziak wrote an op-ed in the Times  in which she pointed out several disturbing aspects to the drone-attack policy. It's bad enough, she writes, that the Obama administration is considering moving the program from the CIA to the Defense Department. (Which, Dudziak notes, "would do nothing to confer legitimacy to the drone strikes. The legitimacy problem comes from the secrecy itself — not which entity secretly does the killing.") It's even worse that the administration is citing Nixon's infamous bombing of Cambodia as part of its legal precedent.
But beyond that, Obama's lawyers used bad information in their white paper :
On Page 4 of the unclassified 16-page "white paper," Justice Department lawyers tried to refute the argument that international law does not support extending armed conflict outside a battlefield. They cited as historical authority a speech given May 28, 1970, by John R. Stevenson, then the top lawyer for the State Department, following the United States' invasion of Cambodia.
Since 1965, "the territory of Cambodia has been used by North Vietnam as a base of military operations," he told the New York City Bar Association. "It long ago reached a level that would have justified us in taking appropriate measures of self-defense on the territory of Cambodia. However, except for scattered instances of returning fire across the border, we refrained until April from taking such action in Cambodia."
But, Dudziak notes, there is a catch:
In fact, Nixon had begun his secret bombing of Cambodia more than a year earlier. (It is not clear whether Mr. Stevenson knew this.) So the Obama administration's lawyers have cited a statement that was patently false.
Now, this "white paper" of Obama's is already of dubious legality at best. The idea that the President can simply write a paper expanding presidential power into extralegal assassination without asking the explicit permission of, well, somebody, anyway, is absurd from the start. Now you add to that the complication of the paper being based in part on some half-assed, hastily-cobbled-together, factually lacking precedent, and the Obama drone-attack rationale becomes like all rationales of blunt-force, repressive power ever written – plainly ridiculous, the stuff of bad comedy, like the Russian military superpower invading tiny South Ossetia cloaked in hysterical claims of self-defense.
Why Rand Paul's Filibuster Matters 
The Wikileaks episode was just an early preview of the inevitable confrontation between the citizens of the industrialized world and the giant, increasingly secretive bureaucracies that support them. As some of Gibney's interview subjects point out in his movie, the experts in this field, the people who worked on information security in the Pentagon and the CIA, have known for a long time that the day would come when all of our digitized secrets would spill out somewhere.
But the secret-keepers got lucky with Wikileaks. They successfully turned the story into one about Julian Assange and his personal failings, and headed off the confrontation with the major news organizations that were, for a time, his allies.
But that was just a temporary reprieve. The secrets are out there and everyone from hackers to journalists to U.S. senators are digging in search of them. Sooner or later, there's going to be a pitched battle, one where the state won't be able to peel off one lone Julian Assange or Bradley Manning and batter him into nothingness. Next time around, it'll be a Pentagon Papers-style constitutional crisis, where the public's legitimate right to know will be pitted head-to-head with presidents, generals and CEOs.
My suspicion is that this story will turn out to be less of a simplistic narrative about Orwellian repression than a mortifying journey of self-discovery. There are all sorts of things we both know and don't know about the processes that keep our society running. We know children in Asia are being beaten to keep our sneakers and furniture cheap, we know our access to oil and other raw materials is being secured only by the cooperation of corrupt and vicious dictators, and we've also known for a while now that the anti-terror program they say we need to keep our airports and reservoirs safe involves mass campaigns of extralegal detention and assassination.
We haven't had to openly ratify any of these policies because the secret-keepers have done us the favor of making these awful moral choices for us.
But the stink is rising to the surface. It's all coming out. And when it isn't Julian Assange the next time but The New York Times, Der Spiegel and The Guardian standing in the line of fire, the state will probably lose, just as it lost in the Pentagon Papers case, because those organizations will be careful to only publish materials clearly in the public interest – there's no conceivable legal justification for keeping us from knowing the policies of our own country (although stranger things have happened).
When that happens, we'll be left standing face-to-face with the reality of how our state functions. Do we want to do that? We still haven't taken a very close look at even the Bradley Manning material, and my guess is because we just don't want to. There were thousands of outrages in those files, any one of which would have a caused a My-Lai-style uproar decades ago.
Did you hear the one about how American troops murdered four women and five children  in Iraq in 2006, including a woman over 70 and an infant under five months old, with all the kids under five? All of them were handcuffed and shot in the head. We later called in an airstrike to cover it up, apparently. But it barely registered a blip on the American consciousness.
What if it we're forced to look at all of this for real next time, and what if it turns out we can't accept it? What if murder and corruption is what's holding it all together? I personally don't believe that's true – I believe it all needs to come out and we need to rethink everything together, and we can find a less totally evil way of living – but this is going to be the implicit argument from the secret-keeping side when this inevitable confrontation comes. They will say to us, in essence, "It's the only way. And you don't want to know." And a lot of us won't.
It's fascinating, profound stuff. We don't want to know, but increasingly it seems we can't not know, either. Sooner or later, something is going to have to give.
Source URL: http://portside.org/2013-03-24/wikileaks-was-just-preview-were-headed-even-bigger-showdown-over-secrets
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