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113th Congress Report SENATE 1st Session 113-118 ====================================================================== FREE FLOW OF INFORMATION ACT OF 2013 _______ November 6, 2013.--Ordered to be printed _______ Mr. Leahy, from the Committee on the Judiciary, submitted the following R E P O R T together with ADDITIONAL AND MINORITY VIEWS [To accompany S. 987]

Senator Cornyn offered an amendment (ALB13708) that would ensure that all persons or entities that are protected under the Free Press Clause of the First Amendment are covered by the bill's privilege. The Committee rejected the amendment by a roll call vote. The vote record is as follows: Tally: 4 Yeas, 13 Nays, 1 Pass Yeas (4): Cornyn (R-TX), Lee (R-UT), Cruz (R-TX), Flake (R- AZ) Nays (13): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D- MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI), Grassley (R-IA), Hatch (R-UT), Graham (R-SC) Pass (1): Feinstein (D-CA)

ADDITIONAL MINORITY VIEWS FROM SENATORS CORNYN, SESSIONS, LEE, AND CRUZ On December 15, 1791, the United States of America ratified the Bill of Rights--the first ten amendments to the U.S. Constitution. The first among them states: ``Congress shall make no law . . . abridging the freedom . . . of the press[.]'' United States Constitution, amend. I. The freedom of the press does not discriminate amongst groups or individuals--it applies to all Americans. As the Supreme Court has long recognized, it was not intended to be limited to an organized industry or professional journalistic elite. See Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (the ``liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. Freedom of the press is a fundamental personal right[.]''); Lovell v. Griffin, 303 U.S. 444, 452 (1938) (``The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.''). The Founders recognized that selectively extending the freedom of the press would require the government to decide who was a journalist worthy of protection and who was not, a form of licensure that was no freedom at all. As Justice White observed in Branzburg, administering a privilege for reporters necessitates defining ``those categories of newsmen who qualified for the privilege.'' 408 U.S. at 704 That inevitably does violence to ``the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.'' Id.

Speaking to Germany’s Der Spiegel magazine in July 2015, Assange suggested that institutions within the international relations discipline have failed to understand the intersection between current geopolitical and technological developments. Specifically, Assange charged that the US journal International Studies Quarterly (ISQ), published by the prestigious International Studies Association (ISA), would not accept manuscripts based on WikiLeaks’ material. Professor of international politics Daniel W. Drezner hit back on July 30 in The Washington Post, arguing that there were other explanations for why the journal was not publishing WikiLeaks’ material. However, he did concede that it is possible that the “structural forces” opposing WikiLeaks were so powerful that a scholar would eschew WikiLeaks’ publications for “fear of being blackballed”. For the thousands of undergraduate to PhD students, fellows and academic researchers facing a precarious employment market, self-censorship for fear of freezing one’s career is not unlikely. One publicised incident from November 2010 concerning the office of career services at Columbia University’s School of International and Public Affairs (SIPA), which according to The New York Times “grooms future diplomats”, provides the perfect illustration. That year the office sent an email to students warning them against commenting on or posting WikiLeaks’ documents on social media because “engaging in these activities would call into question your ability to deal with confidential information, which is part of most positions with the federal government”. The warning came to the office through a SIPA alumnus working at the State Department.

Years later, the tone of the warning continued to reverberate through the halls of one of the most reputable universities in the world. In documenting human rights abuses in June 2013 a Columbia University graduate class produced the anonymous academic paper “WikiLeaks and Iraq Body Count: the sum of parts may not add up to the whole — a comparison of two tallies of Iraqi civilian deaths”. The acknowledgements section of their report refers to the 2010 warning email and states that in light of that email it would be “unwise and perhaps unethical to acknowledge all the participating students by name”. Others participating in a peer-review process have cited additional factors curtailing their use of comprehensive and illuminating WikiLeaks publications. Former US presidential candidate for the Green Party Cynthia McKinney, for example, says that she was forced to scrub her PhD dissertation from any reference of WikiLeaks material. However Drezner, who is an ISA member and on the ISQ’s web advisory board, claims that WikiLeaks’ published diplomatic cables “are not nearly as significant as Assange believes” and that the “academic universe is indifferent to WikiLeaks”. A surprising claim, given that international human rights courts have not been indifferent to evidence derived from WikiLeaks’ published cables, including cables that show the insidious ways in which European officials attempt to conceal CIA torture in secret prisons.

To help address the gap in scholarly analysis of the more than 2 million US diplomatic cables and State Department records published by WikiLeaks since 2010, WikiLeaks has produced a new book, The WikiLeaks Files: The World According to US Empire, published September 7, 2015. The book brings together journalists, researchers and experts on international law and foreign policy to examine the current cables and records. The documents are extensive. They expose US efforts —  across Bush and Obama administrations — to use bribes and threats to keep the US protected from facing war crimes allegations, conveying the fading effervescence of concepts such as “international justice” or “rule of law” in the face of a superpower that clearly believes that “might makes right”. Analysts review the efforts US diplomats take to maintain ties with dictators. They examine the meaning of human rights in the context of a global “War on Terror”. Like the cables they seek to illuminate, the 18 chapters of the book touch upon most major regions of the world. Experts on US foreign policy such as Robert Naiman, Stephen Zunes and Gareth Porter examine cables that reveal US meddling in Syria, US acceptance of Israeli violations of international law, and how the US dealt with the International Atomic Energy Agency in relation to Iranian nuclear development. The book offers a user guide written by WikiLeaks’ investigations editor Sarah Harrison on how to research WikiLeaks’ cables including meta data and content.

A partnership between police departments and social media sites discussed at a convention in Philadelphia this week could allow law enforcement to keep anything deemed criminal off the Internet—and even stop people from organizing protests. A high-ranking official from the Chicago Police Department told attendees at a law enforcement conference on Monday that his agency has been working with a security chief at Facebook to block certain users from the site “if it is determined they have posted what is deemed criminal content,” reports Kenneth Lipp, an independent journalist who attended the lecture. Lipp reported throughout the week from the International Association of Chiefs of Police conference, and now says that a speaker during one of the presentations suggested that a relationship exists between law enforcement and social media that that could be considered a form of censorship. According to Lipp, the unnamed CPD officer said specifically that his agency was working with Facebook to block users’ by their individual account, IP address or device, such as a cell phone or computer.

It is alleged that some of the bail money that released Sturgis and the other Watergate burglars was drug money from the CIA asset turned drug trafficker, Manuel Artime, and delivered by Artime’s money-launderer, Ramón Milián Rodríguez. After the Iran-Contra scandal went public, Milián Rodríguez was investigated by a congressional committee – not for Watergate, but because, in support of the Contras, he had managed two Costa Rican seafood companies, Frigorificos and Ocean Hunter, that laundered drug money.6

In the 1950s Wall Street was a dominating complex. It included not just banks and other financial institutions but also the oil majors whose cartel arrangements were successfully defended against the U.S. Government by the Wall Street law firm Sullivan and Cromwell, home to the Dulles brothers. The inclusion of Wall Street conforms with Franklin Roosevelt’s observation in 1933 to his friend Col. E.M. House that “The real truth … is, as you and I know, that a financial element in the larger centers has owned the Government ever since the days of Andrew Jackson.”18 FDR’s insight is well illustrated by the efficiency with which a group of Wall Street bankers (including Nelson Rockefeller’s grandfather Nelson Aldrich) were able in a highly secret meeting in 1910 to establish the Federal Reserve System – a system which in effect reserved oversight of the nation’s currency supply and of all America’s banks in the not impartial hands of its largest.19 The political clout of the quasi-governmental Federal Reserve Board was clearly demonstrated in 2008, when Fed leadership secured instant support from two successive administrations for public money to rescue the reckless management of Wall Street banks: banks Too Big To Fail, and of course far Too Big To Jail, but not Too Big To Bail.20

since its outset, the CIA has always had access to large amounts of off-the books or offshore funds to support its activities. Indeed, the power of the purse has usually worked in an opposite sense, since those in control of deep state offshore funds supporting CIA activities have for decades also funded members of Congress and of the executive – not vice versa. The last six decades provide a coherent and continuous picture of historical direction being provided by this deep state power of the purse, trumping and sometimes reversing the conventional state. Let us resume some of the CIA’s sources of offshore and off-the-books funding for its activities. The CIA’s first covert operation was the use of “over $10 million in captured Axis funds to influence the [Italian] election [of 1948].”25 (The fundraising had begun at the wealthy Brook Club in New York; but Allen Dulles, then still a Wall Street lawyer, persuaded Washington, which at first had preferred a private funding campaign, to authorize the operation through the National Security Council and the CIA.)26 Dulles, together with George Kennan and James Forrestal, then found a way to provide a legal source for off-the-books CIA funding, under the cover of the Marshall Plan. The three men “helped devise a secret codicil [to the Marshall Plan] that gave the CIA the capability to conduct political warfare. It let the agency skim millions of dollars from the plan.”27

They say what goes around comes around, and there's perhaps nowhere that rings more true than in the world of government surveillance. Such was the case on Monday morning when Hacking Team, the Italian company known for selling electronic intrusion tools to police and federal agencies around the world, awoke to find that it had been hacked itself—big time—apparently exposing its complete client list, email spools, invoices, contracts, source code, and more. Those documents show that not only has the company been selling hacking tools to a long list of foreign governments with dubious human rights records, but it’s also establishing a nice customer base right here in the good old US of A. The cache, which sources told Motherboard is legitimate, contains more than 400 gigabytes of files, many of which confirm previous reports that the company has been selling industrial-grade surveillance software to authoritarian governments. Hacking Team is known in the surveillance world for its flagship hacking suite, Remote Control System (RCS) or Galileo, which allows its government and law enforcement clients to secretly install “implants” on remote machines that can steal private emails, record Skype calls, and even monitor targets through their computer's webcam. Hacking Team in North America

According to leaked contracts, invoices and an up-to-date list of customer subscriptions, Hacking Team’s clients—which the company has consistently refused to name—also include Kazakhstan, Azerbaijan, Oman, Saudi Arabia, Uzbekistan, Bahrain, Ethiopia, Nigeria, Sudan and many others. The list of names matches the findings of Citizen Lab, a research lab at the University of Toronto's Munk School of Global Affairs that previously found traces of Hacking Team on the computers of journalists and activists around the world. Last year, the Lab's researchers mapped out the worldwide collection infrastructure used by Hacking Team's customers to covertly transport stolen data, unveiling a massive network comprised of servers based in 21 countries. Reporters Without Borders later named the company one of the “Enemies of the Internet” in its annual report on government surveillance and censorship.

we’ve only scratched the surface of this massive leak, and it’s unclear how Hacking Team will recover from having its secrets spilling across the internet for all to see. In the meantime, the company is asking all customers to stop using its spyware—and likely preparing for the worst.

The United Nations’ top official for counter-terrorism and human rights (known as the “Special Rapporteur”) issued a formal report to the U.N. General Assembly today that condemns mass electronic surveillance as a clear violation of core privacy rights guaranteed by multiple treaties and conventions. “The hard truth is that the use of mass surveillance technology effectively does away with the right to privacy of communications on the Internet altogether,” the report concluded. Central to the Rapporteur’s findings is the distinction between “targeted surveillance” — which “depend[s] upon the existence of prior suspicion of the targeted individual or organization” — and “mass surveillance,” whereby “states with high levels of Internet penetration can [] gain access to the telephone and e-mail content of an effectively unlimited number of users and maintain an overview of Internet activity associated with particular websites.” In a system of “mass surveillance,” the report explained, “all of this is possible without any prior suspicion related to a specific individual or organization. The communications of literally every Internet user are potentially open for inspection by intelligence and law enforcement agencies in the States concerned.”

Mass surveillance thus “amounts to a systematic interference with the right to respect for the privacy of communications,” it declared. As a result, “it is incompatible with existing concepts of privacy for States to collect all communications or metadata all the time indiscriminately.” In concluding that mass surveillance impinges core privacy rights, the report was primarily focused on the International Covenant on Civil and Political Rights, a treaty enacted by the General Assembly in 1966, to which all of the members of the “Five Eyes” alliance are signatories. The U.S. ratified the treaty in 1992, albeit with various reservations that allowed for the continuation of the death penalty and which rendered its domestic law supreme. With the exception of the U.S.’s Persian Gulf allies (Saudi Arabia, UAE and Qatar), virtually every major country has signed the treaty. Article 17 of the Covenant guarantees the right of privacy, the defining protection of which, the report explained, is “that individuals have the right to share information and ideas with one another without interference by the State, secure in the knowledge that their communication will reach and be read by the intended recipients alone.”

The report’s key conclusion is that this core right is impinged by mass surveillance programs: “Bulk access technology is indiscriminately corrosive of online privacy and impinges on the very essence of the right guaranteed by article 17. In the absence of a formal derogation from States’ obligations under the Covenant, these programs pose a direct and ongoing challenge to an established norm of international law.” The report recognized that protecting citizens from terrorism attacks is a vital duty of every state, and that the right of privacy is not absolute, as it can be compromised when doing so is “necessary” to serve “compelling” purposes. It noted: “There may be a compelling counter-terrorism justification for the radical re-evaluation of Internet privacy rights that these practices necessitate. ” But the report was adamant that no such justifications have ever been demonstrated by any member state using mass surveillance: “The States engaging in mass surveillance have so far failed to provide a detailed and evidence-based public justification for its necessity, and almost no States have enacted explicit domestic legislation to authorize its use.”

The debate over online anonymity, and all the whistleblowers, trolls, anarchists, journalists and political dissidents it enables, is messy enough. It doesn’t need the US government making up bogus statistics about how much that anonymity facilitates child pornography.

he debate over online anonymity, and all the whistleblowers, trolls, anarchists, journalists and political dissidents it enables, is messy enough. It doesn’t need the US government making up bogus statistics about how much that anonymity facilitates child pornography. At the State of the Net conference in Washington on Tuesday, US assistant attorney general Leslie Caldwell discussed what she described as the dangers of encryption and cryptographic anonymity tools like Tor, and how those tools can hamper law enforcement. Her statements are the latest in a growing drumbeat of federal criticism of tech companies and software projects that provide privacy and anonymity at the expense of surveillance. And as an example of the grave risks presented by that privacy, she cited a study she said claimed an overwhelming majority of Tor’s anonymous traffic relates to pedophilia. “Tor obviously was created with good intentions, but it’s a huge problem for law enforcement,” Caldwell said in comments reported by Motherboard and confirmed to me by others who attended the conference. “We understand 80 percent of traffic on the Tor network involves child pornography.” That statistic is horrifying. It’s also baloney.

In a series of tweets that followed Caldwell’s statement, a Department of Justice flack said Caldwell was citing a University of Portsmouth study WIRED covered in December. He included a link to our story. But I made clear at the time that the study claimed 80 percent of traffic to Tor hidden services related to child pornography, not 80 percent of all Tor traffic. That is a huge, and important, distinction. The vast majority of Tor’s users run the free anonymity software while visiting conventional websites, using it to route their traffic through encrypted hops around the globe to avoid censorship and surveillance. But Tor also allows websites to run Tor, something known as a Tor hidden service. This collection of hidden sites, which comprise what’s often referred to as the “dark web,” use Tor to obscure the physical location of the servers that run them. Visits to those dark web sites account for only 1.5 percent of all Tor traffic, according to the software’s creators at the non-profit Tor Project. The University of Portsmouth study dealt exclusively with visits to hidden services. In contrast to Caldwell’s 80 percent claim, the Tor Project’s director Roger Dingledine pointed out last month that the study’s pedophilia findings refer to something closer to a single percent of Tor’s overall traffic.

A​ military judge has rejected a request for war court intervention in the healthcare of an alleged 9/11 plotter who, according to his lawyer, still suffers from wounds inflicted at a CIA “black site” where agents subjected him to rectal rehydration.Army Col. James L. Pohl wrote in a two-page order released by the Pentagon Friday that the court “does not have the authority to address issues concerning medical care.” It was dated March 10.In February, the attorney for Saudi captive Mustafa al Hawsawi asked the judge to intervene in the case, referring to a recently released portion of the Senate Intelligence Committee's “Torture Report,” and saying that the 46-year-old man had been rectally abused while in CIA custody — and that he continues to bleed now, at least eight years later. “Some would call that sodomy,” said attorney Walter Ruiz, adding that “those acts caused longstanding chronic medical conditions that have yet to be resolved.”

Hawsawi is accused of helping the Sept. 11 hijackers with travel and money. He is awaiting a death-penalty trial with the alleged mastermind, Khalid Sheik Mohammed, and three others, all of whom were subjected to “enhanced interrogation techniques” before they got to Guantánamo in September 2006.Hawsawi has sat on a pillow over years of pretrial hearings. The February hearing was the first time that Ruiz was permitted to explain it under a loosening of censorship at the court that lets lawyers talk about the released, redacted 524-page portion of the 6,200-page Senate report.Guantánamo’s prison spokesmen say war-on-terror captives get the same level of medical care as U.S. service members.Ruiz specifically cited a reference to an investigation of allegations that CIA agents conducted medically unnecessary rectal exams with excessive force on two detainees, one of them Hawsawi, who afterward suffered an anal fissure, rectal prolapse and hemorrhoids.　

Ruiz said that guards sometimes find blood in Hawsawi’s clothes. The lawyer asked the judge to order prison legal and medical staff to speak with him, as Hawsawi’s healthcare proxy, and to let him see Hawsawi’s secret medical records. Prosecutors urged the Army judge to stay out of the issue. “No doctor should be treating with a lawyer looking over his shoulder,” said federal attorney Ed Ryan.The Sept. 11 hearings are in recess until April 20.