Constitutional Law

"More than anything else, this is one more government failure."

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Roger Pilon, the director of the Cato Institute's Center for Constitutional Studies, weighs in on the legal ramifications of the latest WikiLeaks' document dump:

[O]ne can say with certainty that any  government official who knowingly downloaded and then released classified documents to a person unauthorized to see or possess them, as Private First Class Bradley Manning is alleged to have done, can be prosecuted under any number of federal statutes. With respect to someone like WikiLeaks founder Julian Assange, however, the issues are more complex. Attorney General Eric Holder has said that the Justice and Defense Departments are conducting a criminal investigation, presumably under the Espionage Act of 1917. That is a vague statute that may be broad enough to enable the president, under his foreign affairs powers, to go after someone who disseminates such documents.  But it has rarely been used, and never against a publisher.

The larger question, however, is how all of this was allowed to happen. Speaking from personal experience, during two brief stints at the State and Justice Departments during the Reagan administration I held a Top Secret clearance, which gave me access to highly classified materials. At that time, however, just to see those materials we had to go to the inner sanctums at State and Justice—areas that were shielded from any kind of eavesdropping—and then the materials were brought to us by agents who stayed with us while we read them.  In light of that experience, I find it incredible that a young Army PFC could download this material and go undetected for long enough to disseminate it and boast about it afterward. More than anything else, this is one more government failure. Heads should roll, but mostly the heads of those who enabled so lax a system to exist.

Read the whole thing here. More Wikileaks' coverage here.

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  1. Sandy Berger has switched to cargo pants!

    1. Thanks for the chuckle 😀

    2. And thigh-highs!

      *barf*

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  2. Yeah, sure, but after a certain point ‘you can’t stop stupid’ (or the willful circumvention of procedures).

    It’s not like in Mr. Pillon’s heyday there weren’t Soviet (and other) moles that pentrated and exploited the US Govt secrecy ‘firewall’ for *years*. Hell, it was the family business for one clan.

    1. Also, many programmers are inept, and government ones even more so. Though one would assume that the military, State Dept, and CIA would have awesome security, we’ve seen how utterly incompetent they are in other realms and should assume it extends to data security.

      1. Having worked as a subcontractor on government software projects in the past, I think I can safely say that most government programmers are woefully inept.

  3. “Heads should roll, but mostly the heads of those who enabled so lax a system to exist.”

    You know, I’m beginning to wonder whether this is all a well-planned disinformation effort. Private First Class ANYBODY had this access? Yeah, right…

    1. I also wondered about the timing of the release of this and all the TSA groping. Misdirection of the plebs so we can fleece them elsewhere.

    2. I can’t find a link, but I read an arcticle yesterday that explained “how” this came to be.

      In the wake of 9/11, information sharing was seen as solving the problems of each agency maintaining its own silo of classified information. So an electronic information sharing system was created.

      Into this electronic system were dumped diplomatic “cables” which had been converted from basically telegrams to a group-email like system.

      There is no separation or categorization in the information sharing system. So anyone with a secret clearance (my wife had one for years) can read everything that is in the system.

      The true failure is in monitoring access to the system. My bank will call my house within an hour after the rare occasion that I use a credit card at the gas pump. But you can download gigabytes of data from the “secret” information sharing pool, and no one will notice.

      1. Perhaps the drive for intelligence-sharing has made intelligence more vulnerable to snooping, but I doubt the “need to know” concept has been scrapped altogether, and that anyone with a certain security grade can access any information to that level, however unrelated.

        1. Yeah, it would seem that chatter from diplomats about the personal habits of foreign officials would not be something that a PFC needs to know.

          The private-sector equivalent would be a teenage summer employee at a Jack-in-the-Box restaurant in Des Moines having access to the corporate CFO’s personal e-mail account in San Diego.

          Is this credible?

          1. Government incompetence surprises you?

            1. “Military intelligence.”

              Okay, maybe not. 🙂

    3. Yes private “nobody,” had access to this material and lots more. The SIPRnet is pretty much wide open to anybody that has access, and young intelligence analysts in the Army usually have unrestricted, and relatively unmonitored access to the SIPRnet.

      When I was a private in the Army I also had easy access to this material. I read diplomatic cables in my spare time. I was amazed a how 19 year old could have such access…

      1. This is sad, but incredibly true. Back when news of the leaks first broke a couple of intel guys I was hanging out with made some guesses about where the data came from, and the type of person who did it. They’ve been proven right.

  4. Pilon is right, this is a foul-up of the first order. While the information in this release isn’t anything that shocks me, the very fact that it was released is shocking. It’s not a matter of being top secret, it’s a matter of it being confidential.

    1. It seems that after 9/11, as part of the effort to get better interagency cooperation and information sharing, State’s database was connected to SIPRNet.

      If this is true, which it probably is, then in theory it is possible that Manning could indeed have hacked the database and gotten his hands on everything.

      Welcome to the perils of Net Centric Systems. It looks like stovepiping is going to be making a comeback.

  5. OT: I discussed politics at work again. He came at me during a weak moment and goaded me with OMGOMGweareallgonnadie climate change and the glory of Obama.

    When, oh when, will I learn?

    1. It is better to be feared than loved. None of the hyper-hippies I work with dare bring up politics with me.

      1. I find the best thing to do is paint yourself blue and white, wear a kilt, carry a sword, and yell “FREEE-DOOOM” at least once a week. This prevents any confusion about your political position.

        I got called “Right of Attila the Hun” (what does that even mean?) for having a Culpeper Minutemen plate on the front of my car. When I got it, it never occurred to me that a flag of historical significance like that would be considered radical. After all, it’s just a symbol of the American Revolution.

        1. While it probably didn’t originate there, it’s a lyric from “The Lady’s Got Potential” from Evita.

          They had themselves a party at the point of a gun
          They were slightly to the right of Attila the Hun
          A bomb or two and very few objected

        2. You don’t recall General Attila at Yorktown? I don’t think we could have won without him, but he created quite a stir when he ate the British dead.

          Is there some factory somewhere that stamps out leftists? They all seem to have the same script in their programming.

          1. They don’t really have a sense of humor. It is common failing of extremists of all stripes. If they were smart enough to be funny and grasp funny, they wouldn’t be dumbasses in the first place. That’s why the common facial expression the follows all left-right partisan humor is the smirk. It signals the tone-deaf audience that it’s time to laugh.

            1. They’re multiplying at an alarmimg rate. At least the hipster doofus variety. I am seeing them more and more in Minneapolis. Why just within the last hour, I walked out of my office dressed in business attire and caught a bus that took me about 15 blocks down the street in order to by weather stripping at an Ace hardware. When I went to exit the bus, there was this guy by the back door who looked just like someone from the Portland paper’s what hipsters are wearing on the street photo shoots. Guy had the beatnic beard thing going on, was wearing gold shoes and playing with his iPhone. I, of course, being dressed as a successful capitalist pig required him to block my exit even though it was clear I was trying to exit. Dude just stood there workin the iPhone like I wasn’t there so I politely said, “Excuse me, young hipster guy.” My first thought was you guys as he stepped aside permitting me to exit.

              1. I figure that if you are going to be assumed to be a plutocrat, you might as well act like one…

                “One side, doofus, or I’ll have your boyfriend killed!”

                or

                “Out of the way, hobo! My yacht is double-parked!”

              2. Depending on the exact arrangement of exit door and doofus, just barrelling through the door so it smacks him but good is always an option.

                Its not like you have to worry about him administering a beatdown or anything.

                Or, you could have just stood right next to him, real close, and watched what he was doing on his Ipod. This creeps the hell out of people. Err, I’m told.

              3. Plutocrats and successful capitalist pigs don’t ride the bus. Al Gore, for example, is chauffered in a limousine. He doesn’t even fly commercial.

                You’re still one of the little people, and doofus is truly clueless not to realize it.

      2. Yeah, but all you have weak-minded college chaff and weirdo career librarians. No one really cares what they think.

        I have work with these people and appear to like them.

        1. I have work with these people and appear to like them.

          You should just destroy them.

          1. You should just destroy them.

            I would, but it’s against company policy.

            1. You need a new job.

            2. Excellent.

              🙂

        2. try them with a little mustard…

    2. Workplace conversation on science fiction novels devolves into political slingfest: “James Hogan? OMG! He is so extreme! A total kook! He like believes in guns and shit!”

      1. If the first thing someone thinks of when they hear the name ‘James Hogan’ is the late author’s political beliefs that person is a dullard over-saturated in the cultural ques of the left. I think of the first decent long form novel about artificial intelligence and the gentle giants of Ganymede. Politics isn’t the first thing that comes to mind when I consider Samuel Delany (Nova — amazingly tight novel), Joanna Russ (the mind of a highly evolved sapien), or Lucius Shepard (damn fine writing, if not technically proficient), and they are all on the left side of the spectrum. I could care less about the author’s politics be he Celine or Sartre, just don’t fucking bore me.

  6. I only wish all governments could be as inept at keeping secrets as ours. Spooks like Roger tend to have a mindset that secrets need to be kept as a part of the world realpolitik, but a world where all public officials have to act as if daylight could be shown on their activities is one I’d rather live in.

    1. I disagree with this. There are good reasons for inner workings of departments like State to remain confidential, with the final determinations that shape policy going public. Kissinger was right when he said that you cannot negotiate in a fishbowl.

      1. If everyone’s in a fishbowl, nobody can deceive and agreements then have to be of an honest nature. The only reason to have secrets is to gain advantage over someone without secrets or have equality with someone with secrets. Otherwise, it works like the market. People always complain we can’t have perfect markets, because we have imperfect information, but as soon as things start to allow more perfect information to become available, people bitch and moan that their advantage over others is being given away.

        Less secrets in the marketplace = more good.

        1. You just need a truth machine

        2. No. At times, negotiators make proposals that they know are unacceptable to create situations that are ultimately acceptable. If they are handcuffed by moment-to-moment political pressures (which is what full, real-time disclosure would create), we’d never see the good that might come from such negotiation.

          1. The problem you have is you can only picture a situation where one side has the advantage of information and that is the flaw (if still a reality).

            In a situation where all motives are laid out to both parties, an acceptable agreement is the only option because both parties know anything less would not result in an agreement.

            I don’t believe this particular wikileak helps us, but if a similar one were to occur revealing dealings Zimbabwe has with Iran, do you think the state department would shed a tear? No, because that gives them more information than they had before. And if you consider that the American people are supposed to be the rulers (by proxy) then they should have as much information as possible on which to base the decisions of who to elect to office.

            1. “In a situation where all motives are laid out to both parties, an acceptable agreement is the only option because both parties know anything less would not result in an agreement.”

              I’m sure this would be a perfect model for negotiating with North Korea.

              1. Ask yourself this question

                In a world where all of the little emperor’s communications and strategies were known, how long could that piss pot despot hold on to any power?

            2. So, when you go into buy a car, you immediately tell the salesman what the maximum price you’re going to pay is, right? And the salesman tells you the minimum?

              What you’re claiming is nonsense, and will only result in such motives and communications taking place in an unrecorded fashion. It will never bring them out into the open, nor should it.

              1. I think the problem with this analysis is that you’re acting like the people working at State are the only ones who get to deliberate.

                Let’s say there are internal communications at State about the best way to contrive a diplomatic incident that will help facilitate a war with Iran.

                If somebody reveals that, they don’t get to say, “Hey, no fair! You’re messing up our strategy!”

                Every last one of us gets to comment on national diplomatic initiatives. Call our Congressman, send pithy emails to the White House, whatever.

                We’re all buying the car.

                1. Shit, we’ve already got two cars that are money pits, we sure as hell don’t need a third.

              2. A marketplace where the dealer understood what the market for cars were going for and I understood what the cars were going for, I could walk in with that knowledge, knowing he knew what an equitable deal would be and we wouldn’t have to bullshit each other to that price that we knew we were going to end up at anyway. And if the car wasn’t worth to me what the market would bear, I wouldn’t waste either of our time by going.

        3. That?s like saying it would be better if a car salesman knew how much you earn and how much is in your bank account, while you knew his margin, etc. It would then all boil down to negotiation skills, with the salesman having the upper hand.

          1. No, you would also know what the market would bear and if he offered the car above that and you asked for the car below that, a deal wouldn’t be made.

            …and trust me, when it comes to negotiation, salesmen don’t have the upper hand, only if you give them the upper hand. After all, they have a fixed commodity (the car) and you have the fungible commodity (money) which you can turn into anything you want. Customers, if they really understood the position they were in (and had a little self control) could always get a fair deal (and usually better because the salesman doesn’t know when another customer is going to walk in the door).

            1. I always do walk out the door no matter what the price ends up. If the salesman lets me go, then I think I know he’s hit bottom.

              Best buying tatic I’ve ever used was when one salesman did everything but hold a gun to my head to take the car home overnight to try it out. I obliged by taking the car and promptly drove the car over to another dealer. I told the second dealer to give me a reason that I should not buy the car from the 1st dealer. The 2nd dealer did give me a reason

  7. And when the US Govt merely revokes someone’s security clearance which no one has the ‘right’ to, (and doesn’t arrest them or otherwise infringe on their actual liberty) he gets to complain to a sympathetic audience on the front page of the Washington Post
    http://www.washingtonpost.com/…..05017.html

  8. Anyone else miss FourLoko posts?

    1. No. It’s much more fun to fight among ourselves. There was nothing to disagree about on 4loko.

      1. We could disagree as to whether it tasted more like piss with alcoholic fruit drink, or battery acid with Zima.

        1. I’m not urging it on anyone… but I bet $50 American dollars that my sweet diabetic piss–chilled and mixed with a neutral liquor to 12% ABV–would beat half the flavors of Four Loko in a blind taste test.

          1. my sweet diabetic piss

            Single-malt SugarFree anyone?

            1. 100% Asparagus Free, or double your money back!

              1. But is it *caffeine* free?

                1. I am naturally energizing. And effervescent.

    2. Have they discovered 4Loko in the Ground-Zero Mosque location yet?

      1. Yes. Sarah Palin’s aborted fetus had a stomach full of it.

        1. Along with some classified papers it was going to email Wikileaks.

          1. And the baby’s father was….David Koch!

    3. Anyone else miss FourLoko posts?

      Not if I could avoid it!

  9. Let’s put it in other terms, and try to see who is at fault for what.

    Suppose that the leaker is an IT worker at Goldman Sachs. For whatever reason, he compiles a ton of internal info, zips it all up, and emails it all to Arianna Huffington. She puts it up as a story under a 200 pt bold headline.

    Who is praised or condemed, for what, and to what extent, by:

    a) media
    b) kossacks
    c) freepers
    d) the state

    1. You don’t even have to make the question hypothetical. We already have an inverse example. Just ask someone what they thought about Wikileaks releasing the CRU Climategate documents.

      I suspect you’ll see a lot of liberal and conservative flacks whose positions have totally reversed.

  10. My favorite part of this whole story is the NYT’s answer as to why they published these leaks but did not publish the emails from Climategate.

    Oh Grey Lady, will you ever learn? From Duranty up to Blair your hypocritical stance on principles never ceases to amaze me.

    1. Mostly the “we won’t do THAT stuff cause it was STOLEN” pomposity came from Andy Revkin, their rezident Climate Alarmist.

  11. Eh, you COULD make the argument that this was a fuck up just waiting to happen. But most folks would make the wrong argument for making that case.

    The system Manning had access to is called SIPR Net (Secure Internet Protocol Routed Network), It’s basically a mirror image of the public internet that you are using right now to read this very comment on Hit and Run.

    The fuck up lies mainly in the way that access is controlled. The emphasis is uber-heavy on the physical and basic user access – i.e., who can get an account. Which is basically anyone with a SECRET level clearance. Which, in turn, is just about anyone working for the government who isn’t obviously an ax murderer.

    Once you have an account, and access to a computer hooked up to SIPR, it’s almost like the fucking Wild West. Information is better protected on the regular, open internet, because well, it’s the open and regular internet, so there is a lot of emphasis placed on access and information controls – which don’t show up on the SIPRnet, because, quite frankly, there’s been little incentive to make the investment to do so. Everybody on it is supposedly ‘trustworthy’. And there aren’t any entities like Banks, or Amazon on SIPR doing commercial things that involve stuff like pay per download, etc. Very few agencies or organizations with a presence on SIPR even bother to have site registration or even the most rudimentary gates to the data they post on their web or ftp servers. Likewise, the machines that most places (particularly military) use are not any different than the machines you go and get at Best Buy, nor are the administered to lock down the CD burners or the USB ports to disable mass data transfers. Hence, the sneakernet aspect to Manning’s alleged theft.

    All of which, even if implemented, puts the spotlight on the absolute Achilles heel of any security regimin or system – the human factor. Because no matter how draconian or carefully engineered, a determined individual will be able to bypass it or overcome it (even if it’s so locked up as to be detrimental to actually being useful in any manner).

    So, run around and scream for heads on pikes, and usual suspects to be rounded up and shot all you’d like. Because the people that will ‘answer the call’ to ‘fix’ the ‘problem’ probably don;t have the first fundamental understanding of what they’re ‘fixing’ in the first place, but will be more than happy to go draconian and simplistic, as long as it looks good on a power point slide to others who have even less of a clue, but can announce to the press that they’ve ‘done something’ to make sure ‘this sort of thing never happens again’.

    Of course, this may be an overly cynical take on the whole thing.

    1. Nope, you nailed it. Even understated it.

    2. I recall reading an excellent book on the subject: “The Art of Deception.” Still, you’d think that, even past the wall set up by SIPRnet, access would be compartmentalized in some fashion. Why would a low-level guy in the military be allowed to access State servers?

      1. That’s a question I was asking (that was usually answered with a shrug) several years ago while working as a contractor at a mil facility, after I found that sitting at the SIPR terminal on my desk, in the CONUS, I had virtually unlimited access to the very sitreps and such from CENTCOM that Manning is alleged to have provided WikiLeaks, and thinking “why the FUCK can I even see this stuff?” I don’t doubt I could have surfed around on State’s stuff, too, despite having no ‘need to know’, or any worries that my surfing was in any way being tracked or would be audited.

        If Banks operated that way, nobody would do any transactions online, and there would be no E-commerce. And no Amazon, either.

        1. Exactly. Even the company I’m working for at the moment restricts my access to personnel files, purchasing data and other information I have no plausible reason to possess. It’s just gob-smackingly stupid that information like this was open to so many.

          1. You would be shocked at how open it is. Sites using telnet instead of ssh, because “why bother?” Shared accounts with passwords the same as the name of the account.

            Security is incredibly lax once someone has their tickets, their clearance and their account on the particular network.

      2. The idea is that any schmoe sitting at computer might want to follow a bunch of obscure threads on lots of unrelated topics just to get some AHA experience and avoid the next 9/11.

        Since I am an intutive problem solver, I’m like “right on!”

        But this obviously produces a massive security hole. So the system was in fact designed by the clueless, for the clueless.

        1. Well, remember that after 9/11, one of the big complaints was not enough intelligence sharing.

      3. I’m a software tester and I’m sometimes amazed at my access to “production” data. But I have access because a task that needs to be done in production is considered “beneath” the “more important people” so I get stuck with it. I imagine it’s the same in this case; PFCs and the like doing the routine chores that the high and mighty “don’t have time for”.

    3. I don’t think one can be overcynical about the way the government works. In fact, I believe this post was not nearly cynical enough. I only counted 5 eye rolls

    4. Interesting. A PFC, i.e. could be an 18-year-old kid who isn’t a known axe-murderer, but has no criminal record only because he has only been an adult for a few months, has clearance to see all this stuff?

      I generally don’t like government “secrets” and most of the time, I assume that “national security” means “stuff I don’t want to get out before the next election”. But if THIS is the level of security we have, why bother having clearances at all?

    5. This is 100% accurate, but some government organizations are more strict than others. They’re also stricter in general about contractors having USB thumb drives or CD-R(W)s than they are government employees, civ or military.

  12. So, basically, we have blown a gaping hole in our data security across the board,

    And now we’re shocked that our data isn’t secure?

    And its all the fault of some skinny little Australian?

    1. Well, gee, we can’t expect the government to take responsibility for this. The government is never wrong!

      (Except on rare occasions when it’s to political advantage, and only if it can be pinned on the previous administration.)

      1. Depending on where you look, you might find people working on the problem of blaming things on future administrations too.

    2. It’s not all his fault, but he does just look like someone that could use a good slapping around on GPs.

    3. “”And its all the fault of some skinny little Australian?””

      Well, not like the government is going to blame and punish themselves.

  13. Of course, anybody who expresses the slightest concern about the government having our personal data–like medical records–and keeping them secure will no doubt be labeled “crazy” by the state and its cheerleaders.

    1. Speaking as someone who resolves ID theft cases for individuals for a living, I have this to say:

      BWAHAHAHAHAHAHAHAHAHAHAHAHA!!!!

  14. so, somehwere on this SIPRNet is every SocSecNumber of every federal employee, along with a bunch of other identifying information.

    Which anybody willing to make a killing at identity theft could just download and sell.

    Which would be tragic. Just tragic.

    1. “anybody willing to make a killing at identity theft could just download and sell.”

      Totally unnecessary. The majority of your personal information, including your SS# and other important private info is not even remotely secure anymore. Anyone with the time and a decent computer can find pretty much all that info online. If people knew how unsecure the majority of their personal information is there would be riots. No one cares until they become a victim.

      You should see some of the middle eastern servers that have reems of personal data on individuals including full checking/savings/investment account info, etc. Frightening is an inadequate description.

  15. After all, it’s just a symbol of the American Revolution.

    When (WHEN?) will our long national nightmare end?

  16. I don?t disagree with the premise, but pointing to his experience in the Reagan Admin is meaningless. At the time info was mostly printed, with a security classification stamped on every page, asking a secretary for a report, etc.

  17. would the feds know anything about the download if manning would not have bragged about it and then sent it to wiki?

    1. They only arrested him after the first document dump, so maybe not.

      That strongly implies that the Chinese have EVERY document in the system, and not just the ones Wikileaks has.

      1. I’d say they were too busy trying to steal Ford “eco-boost” documents, but there’s a billion of those little devils, so I’m sure they’ve got people working on both.

        1. Get used to it, LIT, they’re the future!

      2. Good point. Since we have so kindly assembled an enormous trove of supposedly sensitive documents in one easily accessible pile, and the Chinese have notable hacker skillz, I don’t see anyway they don’t have full access to SIRPNet.

        1. The government depends (perhaps far too much) on the air gap. The network isn’t physically connected to the Internet at all.

  18. Yeah, I agree so much with many of you – the more secrecy in government the better for all of us. In fact, I wish Dick Nixon had never been exposed, likewise with the horror that constituted the Vietnam war. Having truth out there just inconveniences our overseers and makes it more difficult for them to take care of us. We’re just better off not knowing and being content with our ipods and watching Bristol on Dancing with the Stars and debating who’s the next American Idol. The real issues are for the big people – you know, the people who actually own this place. It’s all just too complicated and confusing for us little folks and some us might get the crazy idea that we should have some say in running this place.

  19. Does it trouble anyone else that a scholar working for the putatively libertarian Cato Institute is more troubled by the fact that state secrets weren’t preserved than by the misbehavior the current wave of leaks revealed? Whose side is Pilon on? If he’s concerned about the well being of the State Department, he ought to find another employer.

  20. “Heads should roll, but mostly the heads of those who enabled so lax a system to exist.”
    Oh please, making the system into the farce that it is has been decades in the making; only the contractors are happy.

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