Press, Civil Rights Groups Struggle Against Federal Surveillance, Secrets


U.S. Free press and other civil rights advocates have encountered setbacks during recent days that included a federal appeals court decision that leaves in place continued mass electronic surveillance of the public.

Separately, the Associated Press (AP) and the Reporters Committee for Freedom of the Press sued the FBI Aug. 27 seeking records on FBI impersonation of journalists and warrantless surveillance.

FBI logoToday’s column summarizes the importance of these court battles and the separate recent reverses in the news industry's ability to serve as watchdog over government.

For example, the Columbia Journalism Review (CJR) this week published a column describing how digital media increasingly bear the burden of fighting the government for release of information under Freedom of Information Act (FOIA) law. A separate CJR column reported  the demise of the University of Maryland-based American Journalism Review (AJR).

This editor spoke about these developments at a meeting of the American Society of Journalists and Authors (ASJA) Aug. 28 at the National Press Club and also the previous evening during a cablecast news interview by RT. News reports relevant to these themes are appended to this column.

After Edward Snowden's whistleblowing in 2013 about abuses against the public by the National Security Agency (NSA) we published Backgrounder on Obama's Big Data Domestic Spying System.

Joseph  Nacchio at NPCLast month, we published Feds Crushed Telecom CEO Who Protected Customer Data from NSA Snoops…But He’s Back, Protesting New Reform Law. This was a report on two courageous and chilling speeches in the nation's capitol by former Qwest Communications Chairman and CEO Joseph Nacchio.

Nacchio argued that the USA Freedom Act, "reform" legislation signed into law in June, will not protect the public against pervasive electronic surveillance by the federal government. In a photo by freelancer Noel St. John used with permission, Nacchio is shown delivering remarks at the National Press Club July 27 in a news conference the Justice Integrity Project helped arrange.

He asserted that abuse by the government poses a greater threat to the American public than does terrorism.

More specifically, he cited evidence that the Bush and Obama administrations misuse their new surveillance tools to prosecute for political reasons innocent people regarded as impediments to the state.

Nacchio's expertise includes running one of the nation's largest providers of telecom and IT services for the federal government. In recognition, President George W. Bush (shown in an official photo) and his new Federal Communications Commission Chairman Michael Powell appointed Nacchio in 2001 to chair two national advisory commissions on telecom infrastructure.

George W. Bush

With that warning in mind, we can focus on the surveillance case: A three-judge panel of the District of Columbia U.S. Circuit Court of Appeals court ruled Aug. 28 that a trial judge exceeded his authority by enjoining the NSA in 2013 from spying on large segments of the public without probable cause.  

NSA Official LogoAn all-Republican panel ruled that plaintiffs in Klayman v. Obama to remand the case back to the lower court. but the arguments were different in three separate opinions that create needless confusion, as one normally pro-surveillance commentator noted in Standing Confusion in 'Obama v. Klayman.' One theme was plaintiffs had not proven they were monitored and so lacked legal "standing" for relief against rights violations because they cannot prove the government spied upon them personally in harmful and illegal ways.

The judges ruled 2-1 that plaintiffs should be permitted to try to prove their standing in future proceedings in advance of the ultimate argument on whether the spying is unconstitutional.

Yet the ruling acknowledged also a potentially unsolvable bureaucratic problem for the plaintiffs (sometimes referenced elsewhere as a Catch 22, derived from a novel by that name): The government has created a “State Secrets” protection preventing citizens from pursuing discovery to learn about arguably illegal spying against them.

Therefore, anyone's practical ability to enforce privacy rights under the tight legal standing requirements becomes almost impossible, except for an occasional inadvertent disclosure via such means as investigative reporting with leaks by whistleblowers who are being ruthlessly tracked down and imprisoned with the new tools of electronic surveillance.

In December 2013, U.S. District Judge Richard Leon (shown in a photo) had issued an injunction against further spying in the case brought by legal gadfly and former federal Richard J. Leonprosecutor Larry Klayman. The injunction has never been enforced, and the appellate action this week removed an immediate threat the NSA would be forced to stop the spying. The court majority did not rule on the legality of the NSA's program although one judge, David Sentelle, argued that the suit should be dismissed outright.

All three of the appellate judges and the trial judge are Republicans. A former aide to Sen. Jesse Helms (R-NC), Sentelle held special powers during the 1990s as a supervisor of independent counsels that spent tens of millions of taxpayer dollars investigating the Clinton administration.

Sentelle (shown in an official photo) also traveled widely across the nation then as one of the nation's most ardent recruiters for the ultra-conservative Federalist Society whose members have heavily populated the courts during both Bush presidencies.

Sentelle's brand of activist conservatism defers to military, intelligence and law enforcement personnel, thereby reducing congressional and other restraints, including legal precedents. His reasoning (not always shared by traditional conservatives alarmed over excessive federal power), is evident in his ruling voiding the criminal convictions of Lt. Col. Oliver North and Admiral John Poindexter in the Iran-Contra arms and drug smuggling scandal during the 1980s. 

David SentelleThat history represents yet another quirk in court procedures that are ostensibly politically neutral once judges attain their lifetime appointments and other powers. It is not partisan to note such curiosities, if not irregularities.

Indeed, our experience at the Justice Integrity Project has been that tea party, Republican-oriented conservatives are especially outspoken in defense of historic constitutional norms that a bipartisan establishment seems increasingly willing to discard in a zeal to foster a national security state ostensibly focused on imprisoning suspected Arab terrorists but readily adapted to prosecuting anyone for political reasons once constitutional safeguards and independent news reporting are gutted.

FBI Creates Phony News Story —— and What Else?

The AP suit against the FBI arose from the FBI's creation of a fake AP story to install surveillance software on the home computer of a 15-year old suspected of bomb threats to his school in Washington State. The sting was exposed in 2007.

The FBI has said it might take at least two more years to comply with FOIA searches sought by the suit, which seeks records of any other incidents whereby FBI personnel have created fictitious news stories or personnel posing as reporters.

Overall, the developments illustrate a tightening grip of an authoritarian, bipartisan government upon U.S. citizens.

Yet a few bright spots of civil rights advocacy are evident in the battles.

The AP's willingness to continue to fight in court to learn about government impersonation of reporters, for example, is a positive sign even though the FBI clearly seeks to drag out its process for releasing documents. Congress intended the FOIA process to be speedy and routine but officials have learned that they can get away with spouting pro-transparency rhetoric while resisting data releases in individual situations by claiming that requested records are too sensitive for the public to see.

Regarding the federal court ruling Aug. 28 on NSA spying, the court ruled that Klayman, founder of the conservative public interest group Freedom Watch, had not proven that the NSA had intercepted his communications. Therefore, they sent the case back to judge Leon in the lower court for further consideration of the issues.

"The panel’s ruling also reverses a ban on the NSA’s collection that had been imposed -and temporarily stayed-by a District Court judge in December 2013," the Washington Post reported. "But the ruling, which is strictly procedural, does not address the constitutionality or legality of the program."

Regarding the FBI's pfishing operation, Wired News reporter Kevin Poulsen broke the story in his 2007 article, FBI's Secret Spyware Tracks Down Teen Who Made Bomb Threats. AP and various other entities have sought since then to learn via reporting and FOIA litigation the extent of such operations. The FBI has said it would take two more years to respond, which would constitute a decade of delay for disclosure regarding just one type of federal snooping and covert action.

James ComeyFBI Director James Comey, shown in an official photo, was President Obama's nominee to lead the FBI for a 10-year term.

He was a former deputy attorney general during the Bush administration. A Republican, Comey was second in command during a period of flagrant civil rights abuses at the Justice Department. We have described him as an affable-sounding personification of prosecution, Wall Street, and military power — a combination that is disturbing in view of the pattern of rights violations under the Bush administration enshrined into near-settled law under Obama.

Comey worked after leaving the Bush Justice Department in August 2005 as a high-ranking executive at the defense contractor Lockheed Martin and at the $75 billion hedge fund Bridgewater Associates. Such funds avoid normal regulation, thereby allowing major players to try to outplay the market on investments. Hiring executives such as Comey draws on their expert knowledge of law enforcement and developing events, and also allows Wall Street barons to reward financially their favorite regulators after and before they rotate between government posts. 

Comey has also been a researcher at Columbia University Law School, a board member of HSBC Holdings in London, and a member of the Defense Legal Policy Board, whose advisers for the Department of Defense have included former Defense Secretaries and such other prominent former officials as Henry Kissinger and Richard Perle.

Justice Integrity Project Provides Perspective

On behalf of the Justice Integrity Project, I amplified on these themes to two audiences last week. The first was the international audience of RT, the Russian-government funded news organization that interviewed me on the AP lawsuit.

I would prefer to discuss such topics on mainstream U.S. media (on whose broadcast outlets I have appeared more than a hundred times discussing less sensitive topics). But those outlets are extremely reluctant these days to discuss in any depth the long pattern of intelligence personnel adopting the cover of journalists, academics, non-government charitable workers, business executives, and politicians in order to accomplish their missions without detection.

This record is clearly documented in books, research papers, and elsewhere. We can re-report (exclusively to the best of my knowledge) content from a declassified CIA memo from 1988, for example. It shows that the Democratic nominee for president Michael Dukakis talked openly during his campaign about a need to reform the CIA.

"The next president," Dukakis was quoted as saying, "should convert the CIA from an organization that 'assassinates people' into an organization that advises presidents." CIA Director of Public Affairs William . B William Webster file photoBaker addressed his memo (dated April 15, 1988) reporting on Dukakis to the CIA Director, who was former FBI Director William H. Webster following the 1987 death of William Casey, the former Reagan-Bush campaign manager for their successful 1980 election. Webster, shown in an official photo, is now chairman of President Obama's Homeland Security Advisory Board.

Later that year on July 14, 1988, C-SPAN founder Brian Lamb hosted freelance writer Joseph McBride on the topic of "George Bush's Early Association with CIA." McBride described his discovery, leading to a column in The Nation Magazine, documenting how incumbent GOP President George H.W. Bush had secretly been a CIA asset during the 1960s while ostensibly businessman and congressman — and why such a double life was bad for the country, and at least deserved discussion.

Lamb, a former Republican appointee during the Nixon administration who founded C-SPAN as service offered by the then-nascent cable industry, enabled a lengthy discussion on the topic, complete with viewer call-in questions. CIA memorialized the entire discussion in a now-declassified 24-page report drawn from a commercial transcription service.

Such a public debate is almost unimaginable these days from political candidates or on the more controlled commercial networks, which are heavily regulated and otherwise deferential to perceived power sources.

Yet at some point these issues arise to a level of importance that should not be ignored by journalists or the public. Thus, this editor's comments are generally the same no matter what the outlet. In this case, I suggested that the FBI ruse in Washington State in 2007 represented merely "the tip of the iceberg" involving many other such ruses, including by intelligence agencies, involving many other professions and situations, and that desire for secrecy explained the FBI's stalling on compliance with FOIA law.  

Separately, ASJA invited me to speak on the topic of developing Washington sources in an era of crackdowns by governments at all levels against employees who talk to reporters. The Society of Professional Journalists is among the groups that have documented the trend, as in its 2014 report, SPJ surveys: Reporters say PIO controls getting worse. The Justice Integrity Project amplified in, Government PR Officials Increasingly Control News, Studies Find  as follows:

Local, state and federal governments increasingly rely on a new breed of public relations officials to control news coverage, according to two major studies announced March 19 in Washington, DC. “It’s no wonder the United States has dropped 13 spots this year in a ranking of countries in press freedom — down to 46th — behind Uganda, El Salvador and Botswana,” said Society of Professional Journalists President David Cuillier.

His group co-sponsored the surveys of local and education reporters. “It’s shameful what is happening in this country," he said. "It’s a war over information and we must take up arms.” Panelists worried that a younger generation reporters has accepted as a new normal government control of information through public information officers (PIOs).

Among other industry developments, the Columbia Journalism Review published two ominous columns last week: As legacy media cut back on FOIA, digital-only news outlets step in and also The end of American Journalism Review and what it means for media criticism.

My talk at the ASJA conference addressed these issues. I suggested solutions for writers in developing sources, with links to several relevant articles listed below. The talk was for a small break-out audience at lunch as part of a larger conference providing tips and inspiration for success as a freelancer in the nation's capital.

The positive theme was that freelancers are well-positioned and indeed obligated, despite the obstacles, to undertake important reporting now necessary on secrecy and surveillance in government.

 

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Related News Coverage

Surveillance Litigation and Reform

OpEdNews, The Dying Institutions Of Western Civilization, Paul Craig Roberts (shown in a file photo), Aug. 31, 2015. The United States no longer has a judiciary. This former branch of government has transitioned into an enabler of executive branch fascism. Dr. Paul Craig RobertsPrivacy is a civil liberty protected by the U.S. Constitution. Recently a three-judge panel of the U.S. Appeals Court for the District of Columbia ruled that the National Security Agency can continue its mass surveillance of the US population without showing cause. The panel avoided the constitutional question by ruling on procedural terms that NSA had a right to withhold the information that would prove the plaintiffs' case. By refusing to extend the section of the USA PATRIOT Act -- a name that puts a patriotic sheen on Orwellian totalitarianism -- that gave carte blanche to the NSA. And by passing the USA Freedom Act, Congress attempted to give NSA's spying a constitutional patina. The USA Freedom Act allows the telecom companies to spy on us and collect all of our communications data and for NSA to access the data by obtaining a warrant from the Foreign Intelligence Surveillance Act (FISA) Court. The Freedom Act protects constitutional procedures by requiring NSA to go through the motions, but it does not prevent telecom companies from invading our privacy in behalf of NSA.

No one has ever explained the supposed threat that American citizens pose to themselves that requires all of their communications to be collected and stored by Big Brother. If the US Constitution was respected by the executive branch, Congress, the judiciary, law schools and bar associations, there would have been a public discussion about whether Americans are most threatened by the supposed threat that requires universal surveillance or by the loss of their constitutional protections.

Lawfare, Standing Confusion in 'Obama v. Klayman,'  Benjamin Wittes, Aug. 31, 2015.  The case is interesting, in my view, only because it shows the degree of confusion in the lower courts concerning standing in cases in which we know widespread collection is taking place, but where any individual might have difficulty showing that his or her own data is part of the sweep. It's odd that this question still causes splintering in the lower courts. It was was, after all, the issue the Supreme Court confronted directly in Clapper — a case that, not coincidentally, involved collection by the same agency. Yet here are three judges of similar ideological stripe (it's not a left-right divide, in other words) on a lower court, who all agree that they are bound by that opinion. They are faced with a pretty simple record. Yet they produce three separate opinions about what Clapper requires in litigation that same agency involving plaintiffs who are situated at least somewhat similarly to those who lost on standing grounds in Clapper.

Washington Post, Federal appeals court weakens lawsuit against NSA’s bulk phone data collection, Ellen Nakashima, Aug. 28, 2015. An appeals court in the District of Columbia dealt a setback Friday to an activist’s lawsuit against the government over the legality of the National Security Agency’s call records program, ruling that the plaintiff has not proved his standing to sue. A three-judge panel for the U.S. Court of Appeals for the District of Columbia ruled that public interest lawyer Larry Klayman, the founder of Freedom Watch, has not proved his own phone records were collected by the NSA — and so has not met a condition of bringing the lawsuit.

Dallas Morning News, Appeals court lifts injunction against NSA bulk surveillance, Michael A. Lindenberger, Aug. 28, 2015. Ruling on phone records case comes as AT&T role in eagerly cooperating with NSA has come under scrutiny. Appeals court rules 3-0 that NSA bulk surveillance program can continue until trail over privacy claims is heard; a big win for NSA. A federal judge in DC [U.S. District Judge Richard Leon, shown in a file photo] had ordered NSA to halt bulk surveillance program while trial continued.

Politico, Judge eager to re-enter NSA surveillance fight, Josh Gerstein, Sept. 1, 2015. Warning that the constitutional rights of tens of millions of Americans are being violated, a federal judge said Wednesday Richard J. Leonthat he's eager to expedite a lawsuit seeking to shut down the National Security Agency's controversial program to collect data on large volumes of U.S. telephone calls. During an hour-long hearing in U.S. District Court in Washington, Judge Richard Leon repeatedly urged the conservative lawyer who brought the suit to take steps to allow the case to move forward quickly by asking a federal appeals court to formally relinquish control over an appeal in the case. Leon noted that the so-called bulk collection program is set to shut down on November 29 as part of a transition to a new system where queries will be sent to telephone companies rather than to a central database stored at the NSA. "The clock is running and there isn't much time between now and November 29," Leon told conservative gadfly Larry Klayman. "This court believes there are millions and millions of Americans whose constitutional rights have been and are being violated, but the window...for action is very small....It's time to move."

New York Times, AT&T Helped U.S. Spy on Internet Traffic, Files Reveal, Julia Angwin, Charlie Savage, Jeff Larson, Henrik Moltke, Laura Poitras And James Risen. The NSA’s ability to spy on vast quantities of Internet traffic passing through the United States has relied on its extraordinary, decades-long partnership with a single company: the telecom giant AT&T. While it has been long known that American telecommunications companies worked closely with the spy agency, newly disclosed N.S.A. documents show that the relationship with AT&T has been considered unique and especially productive. One document described it as “highly collaborative,” while another lauded the company’s “extreme willingness to help.” AT&T’s cooperation has involved a broad range of classified activities, according to the documents, which date from 2003 to 2013. AT&T has given the N.S.A. access, through several methods covered under different legal rules, to billions of emails as they have flowed across its domestic networks. It provided technical assistance in carrying out a secret court order permitting the wiretapping of all Internet communications at the United Nations headquarters, a customer of AT&T.  Newly disclosed documents show that the National Security Agency gained access to billions of emails through a “highly collaborative” relationship with AT&T.

OpEdNews, Whistleblower Reveals AT&T/NSA Unholy Alliance, Joan Brunwasser, Aug. 25, 2015. Interview with noted AT&T whistleblower Mark Klein (shown in Klein family photo) on warrantless surveillance of AT&T customers.

Mark Klein (Klein family photo courtesy of DRM)Brunwasser: What you've just said raises so many questions; where shall I start? How did NSA go from their illegal domestic spying in the '70s to this? I don't get it. Wasn't what was once illegal still illegal?

Klein: There's two facets to the change from the '70s, one political and the other technological. Technologically, there has been a giant qualitative leap in surveillance capability because of the development of really fast computers, coupled with fiber optic cables that can carry huge amounts of data in just a few seconds, and the internet which reaches into every home. Couple that with the leap in storage technology, and you have the makings of a police state. Back in the '60s, for instance, when the FBI wanted to do surveillance on someone (e.g., Martin Luther King), it was very slow and labor intensive--you had to assign agents to tap into phone lines and record with old-fashioned tape recorders. It took a lot of time and effort, and so perhaps only a few hundred people could be spied on at once. Now, with the internet, it's all been automated with computers, which can sweep up the communications of millions of people automatically, and then the data can be searched by an agent using a keyboard.

Justice Integrity Project, Feds Crushed Telecom CEO Who Protected Customer Data from NSA Snoops…But He’s Back, Protesting New Reform Law, Andrew Kreig, July 26, 2015. Joseph P. NacchioLong before 9/11 in 2001 or the reformist surveillance law signed last month, one of the nation’s top telecom executives reminded federal officials they needed court approval before his company could hand over en masse private customer data to the National Security Agency (NSA). Qwest Chairman and CEO Joseph P. Nacchio, chair of two national telecom advisory councils under the then-new Bush administration, thus followed traditional business and legal principles regarding government requests for electronic data. But Nacchio (shown in a family photo) then endured a long nightmare of reprisal that is relevant to the supposed protections of the USA Freedom Act signed last month.

FBI Fake News Story Litigation

AP via US News, Associated Press sues over access to records involving FBI's dissemination of fake news story, Michael Biesecker, Aug. 27, 2015. The AP sued the U.S. Department of Justice Thursday over the FBI's failure to provide public records related to the creation of a fake news story used to plant surveillance software on a suspect's computer. AP joined with the Reporters Committee for Freedom of the Press to file the lawsuit in U.S. District Court for the District of Columbia. At issue is a 2014 Freedom of Information request seeking documents related to the FBI's decision to send a web link to the fake article to a 15-year-old boy suspected of making bomb threats to a high school near Olympia, Washington. The link enabled the FBI to infect the suspect's computer with software that revealed its location and Internet address. AP strongly objected to the ruse, which was uncovered last year in documents obtained through a separate FOIA request made by the Electronic Frontier Foundation.

Seattle Times, FBI Phishing: Fake Newspaper Web Site Nabs 15-Year-Old, Steven Wishnia, Oct. 28, 2014. Seven years ago, the FBI created a fake news story on a bogus Seattle Times Web page to plant tracking software in the computer of a 15-year-old boy suspected of making bomb threats to his high school, the paper reported Oct. 27. According to documents obtained by the Electronic Frontier Foundation (EFF) in San Francisco, the FBI concocted the scheme to locate the suspect, then a student at Timberline High School in Lacey, Washington, a suburb of Olympia. He was arrested in June 2007. That the FBI’s Seattle office used spyware to find the youth, Josh Glazebrook, was known in 2007. But that the means they used was a form of “phishing” — creating the counterfeit Times site so Glazebrook would click on it and launch the software that would reveal his Internet-protocol address — was not publicized until Oct. 26, when Christopher Soghoian, the principal technologist for the American Civil Liberties Union in Washington, D.C., posted a message about it on Twitter. The EFF documents reveal that the FBI dummied up a story with an Associated Press byline about the Thurston County bomb threats with an email link “in the style of The Seattle Times,” including details about subscriber and advertiser information. The link was sent to the suspect’s MySpace account. When the suspect clicked on the link, the hidden FBI software sent his location and Internet Protocol information to the agents. “We are outraged that the FBI, with the apparent assistance of the U.S. Attorney’s Office, misappropriated the name of The Seattle Times to secretly install spyware on the computer of a crime suspect,” said Times editor Kathy Best. “Not only does that cross a line, it erases it,” she said.

Wired, FBI's Secret Spyware Tracks Down Teen Who Made Bomb Threats, Kevin Poulsen, July 18, 2007. FBI agents trying to track the source of e-mailed bomb threats against a Washington high school last month sent the suspect a secret surveillance program designed to surreptitiously monitor him and report back to a government server, according to an FBI affidavit obtained by Wired News. The court filing offers the first public glimpse into the bureau's long-suspected spyware capability, in which the FBI adopts techniques more common to online criminals. The software was sent to the owner of an anonymous MySpace profile linked to bomb threats against Timberline High School near Seattle. The code led the FBI to 15-year-old Josh Glazebrook, a student at the school, who on Monday pleaded guilty to making bomb threats, identity theft and felony harassment. In an affidavit seeking a search warrant to use the software, filed last month in U.S. District Court in the Western District of Washington, FBI agent Norman Sanders describes the software as a "computer and internet protocol address verifier," or CIPAV.

FBI Spyware in a Nutshell

The full capabilities of the FBI's "computer and internet protocol address verifier" are closely guarded secrets, but here's some of the data the malware collects from a computer immediately after infiltrating it, according to a bureau affidavit acquired by Wired.

• IP address
• MAC address of ethernet cards
• A list of open TCP and UDP ports
• A list of running programs
• The operating system type, version and serial number
• The default internet browser and version
• The registered user of the operating system, and registered company name, if any
• The current logged-in user name
• The last visited URL

Once that data is gathered, the CIPAV begins secretly monitoring the computer's internet use, logging every IP address to which the machine connects. All that information is sent over the internet to an FBI computer in Virginia, likely located at the FBI's technical laboratory in Quantico.

Under a ruling this month by the 9th U.S. Circuit Court of Appeals, such surveillance — which does not capture the content of the communications -- can be conducted without a wiretap warrant, because internet users have no "reasonable expectation of privacy" in the data when using the internet. The FBI's national office referred an inquiry about the CIPAV to a spokeswoman for the FBI Laboratory in Quantico, who declined to comment on the technology.

The FBI has been known to use PC-spying technology since at least 1999, when a court ruled the bureau could break into reputed mobster Nicodemo Scarfo's office to plant a covert keystroke logger on his computer. But it wasn't until 2001 that the FBI's plans to use hacker-style computer-intrusion techniques emerged in a report by MSNBC.com. The report described an FBI program called "Magic Lantern" that uses deceptive e-mail attachments and operating-system vulnerabilities to infiltrate a target system. The FBI later confirmed the program, and called it a "workbench project" that had not been deployed.

RT, AP lawsuit against FBI opens window on secret world of intelligence, Staff report, Aug. 28, 2015 (Video). An AP lawsuit over access to FBI records involving a fake news story is very important as, among other reasons, it gives Americans a chance to ask candidates’ questions on accountability in such cases, Andrew Kreig, executive director of the Justice Integrity Project told RT. The Associated Press  is suing the US government. The American news agency is demanding the FBI provide information on how it ensnared a suspect using a fake AP story.

RT: Were the actions of the FBI legal?

Andrew Kreig: We’re living a world where many people in law enforcement, in intelligence and elsewhere say if they’ve done that, it’s automatically legal. That is not our historic interpretation, so most of us who grew up under the same laws, but with different interpretations would say: “It’s not legal unless there are warrants and other safeguards.”

RT: Have there been similar cases of government agencies impersonating journalists?

AK: Yes, but they are often not cases that are litigated, because they are secret. One of the many important aspects of this is that shows a window onto the secret world of law enforcement and intelligence that we as researchers only see scraps of. This is, in my opinion, a very small tip of the iceberg, and that is why it’s so important that AP is moving forward in this situation.

RT: How likely is the Associated Press to win its case against the government?

AK: The FBI is talking about taking two years to find the documents. This incident happened in 2007. So that is already eight years ago - we’re talking about two more years- that would be 10 years to find out about one situation, when there could be vast numbers of situations.

Going back to the previous question, the [former] head of the CIA was a journalist for his early part of the career - Richard Helms. We know from the exposes in the 1970’s that people forget that there is enormous standard practice of the agency using journalists, impersonating journalists — all of that is a part of the history that needs to be put into the context of this lawsuit.

RT: Are any government officials likely to be brought to account in this case?

AK: Probably not. Again, it was eight years ago. That is a great question, because one of the things, as Americans look at the candidates and have a rare chance to ask them questions, they should be asking about accountability in this kind of situation. We’re not talking about sending somebody to prison, at least I’m not, but there should be something on the record that the people responsible suffered some reprisal. Maybe it’s just a letter in the file, or maybe slight suspension. But it’s got to be sending a message that this is not appropriate, because it’s not just one case. The Associated Press is looking for the pattern, the FBI is resisting that. They could find that, if they wanted to- they don’t want to; they want it to blow away.

Government Public Information Offices Assert Control Over Sources, News

Justice Integrity Project, Government PR Officials Increasingly Control News, Studies Find, Andrew Kreig, March 20, 2014. Local, state and federal governments increasingly rely on a new breed of public relations officials to control news coverage, according to two major studies announced March 19 in Washington, DC. “It’s no wonder the United States has dropped 13 spots this year in a ranking of countries in press freedom – down to 46th – behind Uganda, El Salvador and Botswana,” said Society of Professional Journalists President David Cuillier. His group co-sponsored the surveys of local and education reporters . “It’s shameful what is happening in this country," he said. "It’s a war over information and we must take up arms.” Panelists worried that a younger generation reporters has accepted as a new normal government control of information through public information officers (PIOs).

Society of Professional Journalists, SPJ surveys: Reporters say PIO controls getting worse, Staff report, March 19, 2014. On the eve of Sunshine Week 2014, the Society of Professional Journalists has released the results from two surveys about journalists’ experience with obtaining public information. The studies were led by Dr. Carolyn S. Carlson — a communication professor from Kennesaw State University in Georgia. The first survey was of political and general assignment reporters working at the state and local level. The vast majority said the amount of control has been increasing over the past several years and they see it only getting worse over the next few years. They agreed the current level of media control by PIOs is an impediment to providing information to the public. The second survey focused on the nation's education reporters. Journalists indicated that public information officers often require pre-approval for interviews, decide who reporters get to interview and often monitor interviews. Sometimes they will prohibit interviews altogether. Education writers agreed with the statement that “the public was not getting all the information it needs because of barriers agencies are imposing on journalists’ reporting practices.”

Journalism Review Shuts Down

Columbia Journalism Review, As legacy media cut back on FOIA, digital-only news outlets step in, Trevor Timm, Aug. 25, 2015. Ask any journalist and they’ll tell you the Freedom of Information Act process is broken. Denials are at record highs, the bureaucracy can be a nightmare, and the federal agencies recently killed a modest reform bill.

Columbia Journalism Review, The end of American Journalism Review and what it means for media criticism, Mike Hoyt, Aug. 24, 2015. AJR is no more. The Review had gone from publishing 11 semi-solid issues a year with a decent website to zero print issues per year. Now it’s gone. Here are a couple of examples. In 2010, it ran a nearly 11,000-word piece by Jodi Enda (“Capital Flight”) documenting the steep decline of Washington reporting — not at political hotspots like the White House, where reporters continue to stumble over each other, but at the bureaus, agencies, and departments where so many life-changing decisions get made, like Justice, EPA, or Agriculture. 
 
American Journalism Review (AJR), Capital Flight, Jodi Enda, June/July 2010. Watchdog reporting is at an alarming low at many federal agencies and departments whose actions have a huge impact on the lives of American citizens. Daily newspapers continue to shed Washington bureaus and severely slash their staffs, fewer reporters than ever are serving as watchdogs.  

Justice Integrity Project, Understanding Hollywood-Style Presidential Propaganda From JFK To Trump, Andrew Kreig, Aug. 18, 2015. Deceptive mass media portrayals of President John F. Kennedy’s life and death help us understand the pervasive hokum in the 2016 presidential campaign.

FBI Leadership Under Director James Comey

In 2013, James Comey succeeded as FBI director Robert Mueller III, left, a fellow Republican who stepped down in 2013 after 12 years leading the FBI. Comey's appointment represented another Republican for a post that Democrats almost never hold, as indicated by a chart. The FBI's first director, J. Edgar Hoover, held the job for 47 years. Bill Clinton appointed Republican Louis Freeh, who fought president bitterly on several key issues during Freeh's seven years in office.

New York Times, Obama To Pick James Comey As FBI Head, Michael S. Schmidt, May 29, 2013. President Obama plans to nominate James B. Comey, a former hedge fund executive who served as a senior Justice Department official under President George W. Bush, to replace Robert S. Mueller III as the director of the Federal Bureau of Investigation, according to two people with knowledge. By choosing Mr. Comey, a Republican, Mr. Obama made a strong statement about bipartisanship at a time when he faces renewed criticism from Republicans in Congress and has had difficulty winning confirmation of some important nominees. At the same time, Mr. Comey’s role in one of the most dramatic episodes of the Bush administration — in which he refused to acquiesce to White House aides and reauthorize a program for eavesdropping without warrants when he was serving as acting attorney general — should make him an acceptable choice to Democrats. It is not clear when Mr. Obama will announce the nomination. Senior F.B.I. officials have been concerned that if the president does not name a new director by the beginning of June, it will be difficult to get the nominee confirmed by the beginning of September, when Mr. Mueller by law must leave his post.

New York Times, Bush Terrorism Fight May Be Fodder in F.B.I. Confirmation, Jonathan Weisman and Sheryl Gay Stolberg, May 30, 2013. The pending nomination of James B. Comey to be director of the Federal Bureau of Investigation will probably shine a fresh light on some controversial chapters in George W. Bush’s war on terrorism, with Republicans more likely than Democrats to question his role in the Bush Justice Department. But senior Senate aides said no immediate red flags were raised on Capitol Hill to indicate a bruising confirmation fight when President Obama makes his choice official. The five F.B.I. directors confirmed since the 1972 death of J. Edgar Hoover (shown at right) all sailed through the Senate. As for Mr. Comey, many of the policy disputes in the years after the attacks of Sept. 11, 2001, had already faded by the end of Mr. Bush’s second term.

Washington Post, Civil liberties groups criticize Comey, but colleagues praise him, Jerry Markon and Sari Horwitz, May 30, 2013. The pending nomination of James B. Comey to be FBI director began on Thursday to reopen old debates over George W. Bush-era national security policies. And despite Comey’s well-publicized role in challenging some of the controversial practices, he has come under attack from civil liberties advocates. One day after President Obama’s plan to nominate the former senior Justice Department official to run the FBI became public, the American Civil Liberties Union became the second civil liberties group to raise questions about Comey’s involvement in the Bush administration’s post-Sept. 11 anti-terrorism tactics, such as warrantless surveillance and tough interrogations.

 

Catching Our Attention on other Justice, Media & Integrity Issues

Washington Post, This Virginia teen will spend 11 years in prison for helping ISIS through social media, Brian Fung, Aug. 28, 2015. It's a sign of how blurry the lines can be between speech and action in the digital age.

Michael Flynn DIA

RT, US ex-intelligence chief on ISIS rise: It was 'a willful Washington decision,' Gayane Chichakyan, Aug, 11, 2015. The US didn’t interfere with the rise of anti-government jihadist groups in Syria that finally degenerated into Islamic State, claims the former head of America’s Defense Intelligence Agency, backing a secret 2012 memo predicting their rise. An interview with retired Lieutenant General Michael Flynn, former head of the Defense Intelligence Agency (DIA), given to Al Jazeera’s Mehdi Hasan, confirms earlier suspicions that Washington was monitoring jihadist groups emerging as opposition in Syria.

Huffington Post, Turkey Charges Vice News Journalists With Supporting ISIS; "Baseless and alarmingly false," Vice responds, Michael Calderone Aug. 31, 2015. Two Vice News journalists and their fixer were charged Monday with "engaging in terror activity" on behalf of the Islamic State, or ISIS, allegations the media company quickly dismissed as an attempt to censor its reporting. "Today the Turkish government has leveled baseless and alarmingly false charges of 'working on behalf of a terrorist organization' against three Vice News reporters, in an attempt to intimidate and censor their coverage," said Kevin Sutcliffe, head of news programming in Europe, in a statement. "Prior to being unjustly detained, these journalists were reporting and documenting the situation in the southeastern Turkish province of Diyarbakir."

"Vice News condemns in the strongest possible terms the Turkish government's attempts to silence our reporters who have been providing vital coverage from the region," Sutcliffe added. "We continue to work with all relevant authorities to expedite the safe release of our three colleagues and friends." Vice News has become known for reporting in some of the most difficult and dangerous parts of the world, including getting unprecedented access last summer to part of Islamic State-controlled Syria. The three journalists -- Jake Hanrahan and Philip Pendlebury, of the U.K., and an unnamed journalist fixer -- were detained Thursday in a predominately Kurdish region of southeastern Turkey. Reuters reported that the journalists, who were "filming clashes between Turkish security forces and Kurdish militants," did not have government accreditation.

Huffington Post, FBI: When It Comes To @ISIS Terror, Retweets = Endorsements; Which makes Twitter one of the bureau's best informants, Ryan J. Reilly, Aug. 7, 2015. The FBI's best informant has played a role in dozens of terrorism cases over the past several years and provided endless intelligence on extremists across the United States. The informant is young, rich, well-connected, easily distracted and really into reality television. The informant's name? Twitter. The social network is an "extraordinarily effective way to sell shoes, or vacations, or terrorism," and it puts propaganda in the pocket of kids and those with troubled minds, FBI Director James Comey said recently. "It's buzz, buzz, buzz, buzz, buzz. It's the constant feed ... the devil on your shoulder all day long, saying, 'Kill, kill, kill.'"

FBI agents have cited suspects' tweets in a slew of recent terrorism cases. Federal prosecutors have charged several Twitter users who allegedly support the Islamic State with lying to federal agents about their Twitter activity. In other cases, the FBI has pointed to Twitter activity -- including retweets -- as probable cause for terrorism charges. In one case, a 17-year-old pleaded guilty to providing "material support" to a designated foreign terrorist organization by tweeting out links. 

Law enforcement officials are ramping up their monitoring of Twitter. The company received 2,879 information requests from federal, state and local law enforcement authorities within the U.S. in 2014 -- a 66 percent increase from the 1,735 it received in 2013, according to its transparency report. Overall, there was a 72 percent jump in the number of accounts affected by such requests in the second half of 2014. The requests could be seeking additional user information, IP addresses and even the content of direct messages sent through the network.

Among the recent terrorism cases that pointed to Twitter, the feds brought criminal charges against Ali Shukri Amin, a 17-year-old from Virginia who operated the Twitter account @AmreekiWitness, simply for sending certain tweets. The government -- which in press releases alternatively referred to Amin as a "Manassas Man" and a "Virginia Teen" -- focused on Amin's tweets about ways to use Bitcoin to financially support the Islamic State, also known as ISIL and ISIS. Amin has pleaded guilty and, in a statement of facts, agreed that he had operated the Twitter account, which "boasted over 4,000 followers," as a "pro-ISIL platform during the course of over 7,000 'tweets.'"