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Comment by raganwald | Hacker News Reader

It appears that Mr. Appelbaum's cell phone named names.

http://en.wikipedia.org/wiki/Hollywood_blacklist

"We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men...

"We proclaim ourselves, as indeed we are, the defenders of freedom, wherever it continues to exist in the world, but we cannot defend freedom abroad by deserting it at home."

--Edward R. Murrow, See It Now, commenting on the McCarthy Witchhunts

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I'm not convinced it's fair to compare the McCarthy black lists to the ongoing investigation of a spectacular crime.

I respect people's opinions regarding the ethics of Wikileaks, but any US citizen who abetted the disclosure of classified military documents is prima facie involved in a serious criminal incident. I don't think the ethics behind the documents leaked justify that crime. Others do. That's fine. But it's probably not reasonable to suggest that the government shouldn't investigate that crime aggressively.

I'm not in love with the doctrine that says you give up the 4th Amendment at the US Border (I buy the motivation behind it, but we appear to overtly abuse that motivation to conduct searches that have nothing to do with securing our borders or stopping contraband). So I wouldn't want to suggest that Moxie has no reason to be upset. Sure, he does. I feel bad for him.

But the abuse of the border search doctrine is not some new encroachment of the US shadow secret police. It's been a fact of life for many decades. Drive to Canada and back sometime to see how bad it gets just for normal people.

I'm pretty sure passing information to Russia and Witchcraft were serious criminal incidents at the time. Guilt by association has never been valid.

I'm not sure it's fair to compare passing information to the Soviet Union to witchcraft, either.

It's also probably not fair to invoke "guilt by association" to a criminal investigation. There is a difference between investigating them and convicting them, or even indicting them, and a sliding scale of burdens the government needs to meet to do each thing in between. Is there any evidence anywhere that Moxie has been charged with any crime?

I feel bad for Moxie. But he's 1 degree of seperation for Wikileaks. I know Wikileaks seems relatively harmless in Internetland, but it's a Very Big Deal in the real world.

Much too late now: http://en.wikipedia.org/wiki/The_Crucible

Edit: OK, I misunderstood tptacek's point.

If it's your impression that I'm saying there was anything reasonable about prosecuting people for witchcraft: no.

If it's your impression that I'm saying there was anything reasonable about prosecuting people for passing industrial, commercial, or military secrets to the Soviet Union: of course there was.

Were people unfairly prosecuted? Yes. Was the discretion to investigate people abused for political purposes? Yes. But don't be naive. There was actual, serious espionage. The Soviet Union was basically our sworn enemy for many decades. I know Internetland is one big happy family, but the real world isn't.

It looks very much like a campaign of harassment rather than a genuine investigation. It seems unlikely that investigators could have got a court injunction on the basis that they were investigating him under.

Pretty much everyone in the security community is probably only 1-2 degrees of separation away from wikileaks. On the basis that his name was in someone's phonebook, you could probably subject pretty much everyone at defcon to investigation.

Notice the part where the TSA randomly pulls him off a plane to give him an extra pat-down. Even if the government believes Marlinspike is somehow involved in the Wikileaks controversy, and even if you think the government is fully justified in aggressively pursuing the Wikileakers, that doesn't justify the kind of petty harassment you see here. There's absolutely no reason to think Marlinspike or anyone else allegedly affiliated with Wikileaks would try to hijack or blow up an airplane. This is simply the government abusing its discretion to harass someone it doesn't like. And it's not limited to border security. American citizens on domestic flights are subject to the same sort of harassment, with no meaningful process to determine why you're being harassed or contest the basis for the harassment. It might not be as bad as McCarthyism, but it's flatly inconsistent with the Constitution.

This is a kaleidoscope of arguments, some of which I agree with and some of which I don't. Should TSA be singling Moxie out? Of course not. TSA also shouldn't be handing people to the police for drug offenses. TSA is a debacle.

Should the country be abusing border integrity for domestic law enforcement? No, I don't think so, but, as a pragmatist, I recognize that this ship has thoroughly sailed, it is long past the horizon, and the very fastest cigarette boat of an argument I can devise has no hope of catching up to it.

Is it "unconstitutional" for someone with a demonstrable connection to someone else who is the focus of a major criminal investigation to be questioned? I can't see how anyone could defend that argument. I feel bad for Moxie, and I wish it took a warrant to search people at the border, but I simply don't think this is harassment.

Your last paragraph has a nice focused point to discuss. The problem (as I see it from the comfort of my armchair) is not whether Moxie should be searched or questioned, it's how. For example, if the police appear at his home and bring him in for questioning, there are a nice series of legal rights and procedures in place to ensure that the investigation is performed properly.

Likewise, if the police wish to search his laptop or phone, there are again a nice series of procedures in place that Americans have already agreed are in society's best interests to enforce.

I would never suggest that the police do not do their job according to the rules in place. I am suggesting that using the border search rules to perform an investigation of an associate of a suspect gives the appearance that the police are avoiding the proper procedures because they don't have the evidence and cause to question him or search his laptop and phone.

This, I argue, undermines the credibility of the investigation, which is of great harm to society as a whole.

I don't like what happened to Moxie.

But: there is a pair of subtexts in the gestalt of the discussion about his border drama that I have a hard time accepting.

The first subtext is the notion that the US government is now harassing security researchers. That notion attaches itself to the headlines being written: "security researcher stopped at border". No. "Security researcher" wasn't stopped. "Affiliate of Wikileaks volunteer" was stopped.

The second subtext is that questioning an affiliate of a Wikileaks volunteer would constitute harassment. Words mean things. Harassment describes government interventions whose sole purpose is to cause discomfort to targets. But an actual crime took place. It wasn't a small crime; it was a criminal event of fairly epic proportions. It may well be mitigated by the ethics of whistleblowing (I don't think so, but respect people who do, and count many of them as friends). Aggressive investigation of epic criminal events is not harassment; it's a central part of the government's charter.

(Did you make any of these claims? I don't care to find out. My issue is with the subtexts, not with any particular person's argument.)

The rest of this discussion, about the justice/injustice of border searches and whatnot... I have less strong opinions about. I've been searched aggressively at US borders. I didn't like it. I thought it was wrong. I researched it, read a bunch of court opinions on it, and came to the conclusion that much like the interpretation of our Second Amendment that guns should be minimally regulated, this is a settled bit of American law that I'm going to have to learn to dislike passively.

I agree with disputing both subtexts. The OP does not suggest that security researches are being targeted for searches. I certainly don't disagree with the notion of investigating a suspect's associates under certain circumstances.

Given your feelings about the subtexts, I think I understand your comments.

Like the federal agents who were caught on camera threatening someone that they would be put on the no-fly list and lose their jobs if they didn't cooperate - this was in a case that had nothing to do with airlines.

So we all accept that the TSA has absolutely nothing to do with transport security - it's just a way of intimidating citizens we don't like ?

When you do face a real terrorist threat it's going to be a little tricky to deal with when all your citizens regard 'anti-terrorism units' as a euphemism for secret police.

The TSA search was punitive and counterproductive. TSA is an ongoing debacle. I'd be angrier about this if TSA wasn't undertaking the harassment of every American citizen in an effort to demonstrate value by causing discomfort and humiliation.

The Customs interrogation was not punitive. Customs agents themselves may not be the sharpest tools in the shed, but part of their charter is to assist in domestic law enforcement. There is a clear law enforcement objective involved in Wikileaks.

Then arrest, charge and try him. Using customs/TSA/etc as an extra-judicial punishment is the scariest thing.

Whats next the local fire service sent out to do safety checks on anyone that opposes the government? I think the last two administrations already got caught ordering tax audits of groups that opposed them.

TSA abused their power, but TSA is an inherently abusive agency.

Customs did not abuse their power. What happened to Moxie is exactly what Customs does (badly). You can end up tussling with Customs for any of a zillion other reasons, too. It's not harassment. Words mean things.

Also, you seem to be under the misapprehension that the only options criminal investigators have is "arrest" (or even "subpoena" or "get a warrant"). That's simply not true.

Customs dragged him off a plane and searched his phone and computer - not looking for things he may have been smuggling but merely to punish him for being associated with wikileaks.

My point is that the specific incident I pointed to--pulling the guy off his plane at the last minute and giving him a pat-down--doesn't seem to be connected to any sort of legitimate policing activity. He's not suspected of a violent crime, and they can't talk to him for very long with the plane ready to leave the gate. It seems pretty clear that the point of pulling him off the plane for a pat-down was to embarrass him in front of the other passengers rather than any legitimate law-enforcement purpose.

Since when is anybody alleging that Moxie is affiliated with Wikileaks?

He's not, but even he acknowledges that Wikileaks is probably the reason he got stopped.

Moxie didn't say anything more than that his phone number was in Jacob Appelbaum's phone.

Jacob has a lot of telephone numbers, perhaps hundreds, including mine. He's a hyper-social guy who knows everybody.

If merely appearing in Jacob's address book was enough to cause serious suspicion the DHS would have confiscated all of our laptops by now.

Since I'm pretty sure that Moxie has nothing to do with Wikileaks, it's a bit of a mystery what this is really about.

Jacob also seems to think this was about Wikileaks. Perhaps Moxie and Jacob know more about the particulars than we do, Bruce.

The comparison I am drawing is between the hollywood blacklists and the arbitrary searches of associates of a suspect. The Morrow quote seems fitting whether you think wikileakers are like persons accused of communism or not. We are talking about two things:

1. Investigating associates of a suspect for no reason other than that they are associates, and 2. Performing searches whenever you can without warrants or any kind of direction. These appear to be fishing expeditions, quite possibly the authorities are hoping to catch an associate with evidence of some other crime that they can use to blackmail them into cooperation.

Does this appear to be wild conspiracy mutterings? Too bad the authorities aren't following any kind of process where such accusations can be aired and refuted. Perhaps there's more to it than mere association. If a warrant had been obtained for a search, we could have some confidence that the police explained the justification in a credible manner. Without a warrant, the credibility of the investigation is undermined.

The seriousness of the crime is a red herring. If it's really serious, then there ought to be even greater motivation to ensure that justice is done publicly and fairly. The argument that serious crimes justify skipping all the annoying business of rights and liberties is broken, and I call on you to clarify that you are not arguing that there are some investigations where the ends justify the means.

Finally, the fact that there have been abuses of the border search doctrine for decades is either irrelevant or even greater motivation to fix the problem. By 1969, police agression against people of colour had been a fact of life for at least a century. Was that any argument to shrug our shoulders at the assassination of Fred Hampton?

http://en.wikipedia.org/wiki/Fred_Hampton

I don't like the border search doctrine, but I don't see it as an injustice at the scale of the assassination of civil rights workers. Your comment sucks all the oxygen out of this discussion. It's ironic that it's me saying this to you, but there it is.

Fred Hampton was referred to by government officials at the time far more often as a criminal or as a terrorist than as a civil rights worker.

This is not a criminal investigation. That's done with warrants and subpoenas. This is harassment and intimidation.

It is extremely unlikely but possible for no US laws to be broken when a classified military document get’s disclosed. This is why it’s often easier to convict people on perjury for trying to cover up how such a discloser happened than it is to find the person who actually broke the law.

If Wikileaks got an truly anonymous donation of classified military documents copy write law might be the strongest limitation on what they can do with it. That is not to say you can simply publish any classified document. However, it comes down to a question of actual harm. Keeping the F-22’s top speed a secret has value, but the top speed of an F-86 Sabre is “687 mph at sea level at 14,212 lb (6,447 kg) combat weight” http://en.wikipedia.org/wiki/North_American_F-86_Sabre

PS: I am not a lawyer, but plenty of US newspapers have published classified documents.

There is a legal difference between handling a packet of documents you receive anonymously (or even via a known source) and being a party to the actual leak of the documents. When the government sues to stop the NYTimes from publishing something, they're stepping into the prior restraint quagmire.

  the ongoing investigation of a spectacular crime

They're really desperately clutching at straws if they are detaining people that are no more related to Wikileaks than being quoted in a speech on Wikileaks. That kind of behaviour is unworthy of the verb 'investigation'.

The problem is that there is a pattern. Whenever something is even remotely related to "national security", constitutional rights, international law and due process are deliberately circumvented or cunningly broken. It's the Guantanamo spirit that is at work here. This spirit has done great damage to the US. The loss of international reputation is a threat to national security and even to economic success.

But what hasn't been discussed as throughly as international relations is that countries in which the law is regarded cynically as an instrument of the rulers are mostly very poor. I think the reason is that enforcing the law against that kind of broad based cynicism is incredibly expensive and ineffective. It's a disincentive to investment and risk taking.

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