[Infowarrior] - JSG: The Bush Era Draws to a Close

[Richard Forno]

The Bush Era Draws to a Close
By Jennifer Granick
02:00 AM Dec, 20, 2006
http://www.wired.com/news/columns/1,72330-0.html

2006 will be remembered as the year in which our government imprisoned
journalists, embraced kidnap and torture as a "no-brainer," and moved toward
implementing an infrastructure for total surveillance of American citizens.
Hopefully, it also will be remembered as the year we started to bring these
practices to a halt.

In this column, I look back on three civil liberties crises that reached a
critical point in 2006. In my next column, my first for 2007, I'll take a
more proactive view of what the new year could mean for civil liberty.
Legal attacks on journalists

This year the U.S. State Department launched the Global Internet Freedom
Task Force to challenge other governments that repress online journalism.
Perhaps it should start at home.

This year, reporters from the The New York Times and Time magazine faced
imprisonment for refusing to say who leaked information about the identity
of undercover CIA agent Valerie Plame. Today, two San Francisco Chronicle
reporters are facing jail time for refusing to reveal who gave them grand
jury transcripts detailing the steroids charges against Barry Bonds and
other professional athletes.

This is a disturbing erosion of press freedom. Historically, courts have
punished people who illegally leak information, but have generally kept
their hands off the journalists who spoke with those people and published
the information. The source privilege is a bedrock of a free press, which is
to say, a press that doesn't have to follow the official line.

Many states have shield laws that explicitly protect reporters from being
forced to disclose the identity of their confidential sources. But the
federal government does not, which makes the state laws easily bypassed. In
the case of blogger and videographer Josh Wolf, the FBI was able to skirt
California's shield law by commencing a federal investigation of the case.

In the most recent battle, the Department of Justice is subpoenaing the ACLU
to force the group to return a leaked confidential document. The effort
threatens to subvert free speech protections established in the Pentagon
Papers case, which held that the government could stop journalists from
publishing classified information only in the most dire of circumstances.

This year, we've also seen companies and law enforcement go directly to the
ISP or telephone company for information about sources, rather than
subpoenaing the journalist, and giving him or her a chance to raise a legal
defense and protect his source.

Apple Computer subpoenaed a blogger's e-mail provider in an effort to
identify someone who leaked new product information. The San Francisco
police department collected phone record information from the press room at
the Hall of Justice to find out which police officer leaked information
showing that a wayward cop involved in beating a civilian had a long history
of disciplinary problems.

Changing law enforcement attitudes aren't the only threat to the freedom of
the press; technology is too.

Condoning torture

More information is coming out about the government's "extraordinary
rendition" program, an admitted effort to kidnap alleged terrorist
operatives and take them to countries without safeguards against torture for
"interrogation".

The Bush administration has defended the practice, and while it denies that
the extra-territorial interrogations amount to torture, no one doubts that
the techniques approved by the administration would be illegal here in the
United States. Indeed, vice president Dick Cheney has called the use of
torture a "no-brainer."

To escape responsibility for torture, officials are hiding behind the "state
secrets doctrine," and strenuously seeking to avoid all public oversight,
judicial review or liability for its actions. Even when they torture the
wrong guy.

For example, German citizen Khaled El Masri was kidnapped by the CIA in
2003, transported to Afghanistan and tortured -- before the CIA realized it
had arrested the wrong person, and, fortunately, released him.

El-Masri's lawsuit against the CIA was dismissed on state secrets grounds,
but is now on appeal. Since the trial court dismissed the case, there is
more public information available about extraordinary rendition, including
Cheney's extraordinary admission and more legal decisions on the books
rejecting state secrets protection for official law-breaking. El Masri's
appeal may be granted.

In early January, an Italian court will consider whether to issue
indictments against CIA agents accused of kidnapping an Egyptian cleric on
the streets of Milan and taking him to Egypt, where he was beaten and given
electric shocks. If the Italian case moves forward, we'll learn more about
our government's complicity in torture.

At that point, we will have to focus on the administration's decision
(backed by Congress) to deny detainees access to the courts, and call it
what it is: not a streamlining of counter-terrorism efforts, but a massive
coverup.

Surveillance infrastructure

Two thousand and six has seen a peak in government and corporate access to
individuals' private information, with little or no legal checks and
balances.

Litigants and investigators can go directly to phone companies, banks,
websites, ISPs and employers for personal information on nearly anyone they
want. In January, AmericaBlog showed it could purchase Gen. Wesley Clark's
phone records online for $89.95. Then Hewlett-Packard's investigation of
leaks from its board shined a light on pretexting, a controversial way to
get information from phone companies and the like by pretending to be the
subscriber.

Congress just passed a statute outlawing pretexting against phone companies,
but nobody else.

Meanwhile, the government collects communications data directly from the
telephone companies. Documents provided to the Electronic Frontier
Foundation, as well as news organizations including Wired News, appear to
show a domestic spying program that dragnets all U.S. communications,
regardless of source or destination, for National Security Agency review
without legal process.

Combine that data with voting records, criminal histories, credit records,
utility usage, library records, internet search histories, closed circuit TV
cameras, facial recognition, RFID tags, and we've got a robust surveillance
infrastructure.

Maybe the government doesn't care about you at the moment -- but someone
always cares, whether advertisers, identity thieves, employers, lovers or
friends. Everyone has private matters they want, and are entitled to keep,
secret. In the past, much of our privacy sprang from the simple fact that
data was not readily collected or searched. Now that we live in an
information society, we need legal barriers to surveillance.

What remains to be seen, in 2007 and beyond, is whether we'll choose to
implement new laws to regain the zone of privacy we used to be able to take
for granted, or not.

Overall, 2006 was not particularly better, nor particularly worse, for civil
liberties than other recent years. Many important issues however, from
freedom of the press, to the rights of individuals to be free from torture,
unreasonable surveillance and invasions of privacy, have moved closer to
resolution.

Next year will determine whether we continue down a path of increased
government power with decreased oversight and transparency, or whether we're
able to harness the power of technology and government in a constructive,
democratically responsive way.
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