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Michael Ratner says that US government is still pursuing criminal investigations against Wikileaks Editor and staffers, not just because of what they have already released to the public but because of what they still continue to release

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SHARMINI PERIES, EXEC. PRODUCER, TRNN: Welcome to The Real News Network. I’m Sharmini Peries, coming to you from Baltimore. Also, welcome to this edition of the Michael Ratner report. Michael Ratner is the president emeritus of the Center for Constitutional Rights in New York, and he is the U.S. attorney for Julian Assange. He is also board member of The Real News Network. Thanks again for joining us, Michael. MICHAEL RATNER, PRESIDENT EMERITUS, CENTER FOR CONSTITUTIONAL RIGHTS: It’s always good to be with The Real News, Sharmini. Thank you for having me. PERIES: You’re very welcome. We’re honored to have you. So, Michael, you want to talk about search warrants today. So what have you? RATNER: You know, for a long time, the Center for Constitutional Rights, myself and others, had been representing Julian Assange and WikiLeaks, as well as members of their staff, with regard to criminal investigations that have been going on against them in the United States particularly. And for years we’ve had doubting Thomases out there. They said, well, Julian Assange is in the embassy in Ecuador, where he’s been given–in London, in the Ecuador embassy, where he’s been given asylum, but is this really a threat? Is the U.S. really after him? After all, he’s a journalist and a publisher. Are they really going after him? And for years now we’ve been trying to demonstrate to these doubters that WikiLeaks and Julian Assange and other staffers are the targets of U.S. criminal proceeding and that the United States is trying to destroy them, not only because of what they’ve published in the past–“Collateral Murder” video, Iraq and Afghan war logs, diplomatic cables–but because of what they’re continuing to do–the Trans-Pacific Partnership, secret agreements, the Syria cables, and of course their heroic efforts to help Snowdon gain asylum. They’re targets despite the fact they’re journalists and publishers. Well, unfortunately, in the last few weeks, there’s additional proof that the United States is out to destroy WikiLeaks. On December 23–a bad news day in terms of getting publicity out right before the Christmas holiday, just over seven weeks ago–three WikiLeaks journalists and editors–Sarah Harrison, Joseph Farrell, and Kristinn Hrafnsson–were notified by Google that pursuant to search and seizure warrants approved by a U.S. federal court, it, Google, had provided U.S. law enforcement officials with all of the email content drafts and deleted email material, subscriber data, metadata, contacts, addresses, pictures, essentially everything associated with the accounts of these three WikiLeaks journalists and staffers, everything–personal and even attorney-client material. The warrants to Google acted like a huge vacuum cleaners, sucking up everything, including everything these people, these journalists searched for on Google. A number of shocking things about these warrants, not only in addition to their give-us-everything order. First, as I’ve stated, the warrants were issued to working journalists and editors, and in that sense they fit a pattern of the Obama administration if they go after not just the sources, such as Chelsea Manning, but they go after journalists who publish what those sources say as well. You recall AP, Associated Press, received 20 different subpoenas for material of their reporters in 2012. James Rosen of Fox, news reporter, was listed as a criminal co-conspirator in an Espionage Act case as a way of getting his materials. So, again, this administration, which has now prosecuted more whistleblowers than any other in history, in fact than all of them combined, is going after WikiLeaks. Secondly, the warrants asserted, the warrants against WikiLeaks staffers asserted that the email of these journalists contained evidence of violations of the Espionage Act, conspiracy to commit espionage, violations of the Computer Fraud and Abuse Act, and other federal laws. So, in other words, they’re trying to link these staffers, WikiLeaks and Julian Assange, into a conspiracy to commit espionage. And third, although these warrants were issued in March 22, 2012, two and a half years ago, the WikiLeaks staffers were notified by Google of these warrants only seven weeks ago, on December 23. And the question is, in my mind, did Google make an effort to stop them? So far it looks like Google may have made an effort. What Google has said, at least to newspapers so far (and perhaps they will soon say to us): that they made an effort to lift gag orders that were put on these subpoenas or these search warrants. But unfortunately, they didn’t get that authority to do so until recently. Unfortunately, what we’ve seen here is another demonstration of what we’ve been saying for a number of years: WikiLeaks and Julian Assange are targets of this massive U.S. criminal investigation. In response to these revelations, WikiLeaks is fighting back. In addition to asking Google about the circumstances of the delay in notifying them, we have sent two letters to the prosecution authorities in the United States. One is to the attorney general, and the other is to the chief prosecutor of the Eastern District of Virginia, where the federal court grand jury has been sitting with regard to WikiLeaks. These letters ask a most important question, and to which our clients are entitled to an answer: is there an ongoing criminal investigation of WikiLeaks, Julian Assange, and our clients? What is the status of that investigation? And are our clients witnesses, subjects, or targets of these investigations? They have a right to know. They have a right to know that there is not a sword of Damocles hanging over their heads. We also want an inventory of all materials turned over to the federal government. They asked for everything, the government. We want to know if my conversations, attorney-client protected, and other attorneys’ were turned over to the government. Our hope is that the U.S. will respond to this. So far it hasn’t. But they did respond to a newspaper reporter rather than to us. What they said: they declined to comment, citing–which is really terrible–citing the ongoing investigation of WikiLeaks. Ultimately we’re deciding what other actions to take against the federal government, including lawsuits, to try and put a stop to this remarkable persecution of WikiLeaks, Julian Assange, and his staff. I want to close on this. Since 2010, it’s clear the U.S. government has WikiLeaks in its sights. There was a grand jury sitting. At the Manning trial it was revealed that they’re trying to build a conspiracy of Manning and WikiLeaks. An agent on the witness stand said that seven managers and officials of WikiLeaks were under investigation. On May 19 of just last year, the government admitted that there was a multisubject criminal investigation of WikiLeaks by the Department of Justice. And now we have these warrants. And then, finally, we have this recent statement that there’s an ongoing investigation of WikiLeaks. Let us remember that these are criminal investigations of publishers and journalists. That is why Julian Assange was given asylum by Ecuador, because he faces persecution for his work as an editor, as a publisher, and as a journalist. It’s something that it’s long past the time when these investigations should come to an end. And as over 50 press and human rights organizations have demanded, including Human Rights Watch, these persecutions of WikiLeaks and its staff must come to an end. PERIES: Michael, a couple of points of clarification. You said that they responded, the government responded to a reporter. Was that The Washington Post? RATNER: Yes, the government responded to The Washington Post by saying they won’t respond, and the reason they won’t respond is because WikiLeaks is still under investigation. Well, that’s more than they’ve ever told us directly. PERIES: And you also sent a letter to Eric Schmidt, the CEO of Google. What was their defense? RATNER: Well, Google has said to The Washington Post–and I think I’ll they’ll be willing to talk to us about it as well–but have said that they have litigated up and down these gag orders, in these cases as well as others, and they are–essentially they’ve lost a lot of them. And, of course, they obviously won this one, at least enough to tell us that–or to tell the truth three staffers that they could tell us about the search warrants. They haven’t told us much more this point. And we’ll see when we get it in writing from Google, etc., what they have done to be able to litigate these search warrants. You understand, this puts a very difficult position. If the federal government asked Google for information and they’re under a gag order, Google can’t tell us without getting contempt of court. And Google, like Twitter did in the past, goes into court and litigates that. And then the court says, you still can’t tell them. The problem that’s faced is extremely hard, because the only real right to litigate, the breadth of those warrants, the content of what those warrants request, is by the people whose records have been subpoenaed. It’s not Google’s records; it’s Sarah Harrison’s records, it’s Joseph Farrell’s records, it’s Kristinn Hrafnsson’s records, it’s WikiLeaks’s records. They can relitigate the substance. Google can’t. Google can only litigate, can we tell them are not. They can’t tell us the federal government can just sweep up everything without anybody going to court. So having a gag order, which would have really been almost unheard of a number of years ago, is really outrageous. It essentially says, federal government, issue a search warrant to Google. Google tries to say, we want to notify Sarah Harrison others. The federal court says no. Everything gets turned over to the federal government, and there’s no litigation as to whether there’s attorney-client material, as to whether the material is relevant, as to whether this is a vacuum cleaner warrant–as someone said to me, a hoover warrant, hoovering in everything that our clients have done. So it makes it a huge black box. And so far–and we’re hopeful that Google has been litigating this gag order. But even then, here it’s two and half years late, the material have been turned over. It’s already too late for us. We, Google, we, WikiLeaks and others who get this kind of warrants about their material, should be in court the first day before that material is turned over. It’s not Google’s fault that they haven’t been able to tell us. It’s the federal court and the federal government and this incredible, incredible secrecy that basically the courts are now engaged in protecting. PERIES: Right. So, according to Google, they actually did challenge their request to reveal these records and the gag order. But we also know that Microsoft and Twitter, I think, publicly challenge the government about handing over these personal records. Clarify that for us. What actually happened? RATNER: There’s two issues you’re raising there. One is Twitter, which was the earliest case of this, which was early on, before 2012, actually–in that period, 2011, 2012–did reveal publicly that there were various Twitter accounts that were subpoenaed by the federal government. And they revealed that publicly and, according to articles in the newspaper by Google and newspaper reporters and others, that there was such a stink about that that the federal government decided to fight much harder to make sure nothing would be revealed about that. When Google apparently tried to do that litigation with litigation, according to Google, it was much more closed in terms of what they could reveal. Google, at least according to the paper, said they did roughly what Twitter did, but they weren’t allowed to reveal as much as Twitter did. So that’s where it stands. We’re still trying to find out more about that. Now, the Microsoft case is quite interesting that you raised. Let’s think about this for a second. If a search warrant in the United States is issued–or let’s say I had a house in Ireland, for example. A U.S. court issues a search warrant and says, we have a right to search this Irish citizen’s house in Ireland. Ireland isn’t going to be happy about it or isn’t going to allow it, because the U.S. court doesn’t have jurisdiction or right to go and search someone’s house in Ireland. So here’s what happened in the Microsoft case. Microsoft sees that the material that’s requested from Microsoft is on servers that are in Ireland. They’re not on Microsoft’s servers in the United States. Microsoft, to its credit, goes into court and says those servers are in Ireland; we don’t think you have–you, federal government, have the statutory authority to go look at servers in Ireland. We don’t think that you’re authorized under the U.S. statute. And, of course, it may be that the Republic of Ireland’s going to be pretty upset over having a U.S. search warrant go into a server that’s in the country of the Republic of Ireland. Microsoft did that. Microsoft lost at the lowest level on that. It’s now in the court of appeals. What will happen we don’t know. What will happen in U.S. courts we don’t know. And, of course, there could be very well be action in the European Union, in Ireland and other countries to say, U.S. courts, you can’t just go searching servers into servers into our countries. Now, in the case that we’ve been discussing, WikiLeaks, but really the three staffers for WikiLeaks, we do not know at this point what servers the material turned over to the United States was on. And that’s a question we want an answer to. So, for example, if that material was on servers in Ireland or other places Google may have had servers, we think that Google should be or should have litigated the question of whether they could turn over to the federal government material on servers outside the United States. As I said, we don’t know where the material was at this point, but you have to consider this. The three people served are the three people whose documents were wanted from Google, whose email was wanted from Google, are all three people who were–are three people who were not in the United States. Kristinn Hrafnsson is Icelandic; Sarah Harrison, U.K. and Germany; Joseph Farrell, U.K. So there’s a fair chance, it seems to me, that their material was not on Google’s servers in the United States, in which case we hope that Google would have made an objection to that material. On the other hand, we’re not sure of this at all, as to where that material was. PERIES: Right. So, Michael, as you uncover more information about this story, we’d certainly like to follow it. So thank you so much for joining us today. RATNER: Thank you for having me on The Real News, Sharmini. PERIES: And thank you for joining us on The Real News Network.


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Michael Ratner is President Emeritus of the Center for Constitutional Rights (CCR) in New York and Chair of the European Center for Constitutional and Human Rights in Berlin. He is currently a legal adviser to Wikileaks and Julian Assange. He and CCR brought the first case challenging the Guantanamo detentions and continue in their efforts to close Guantanamo. He taught at Yale Law School, and Columbia Law School, and was President of the National Lawyers Guild. His current books include Hell No: Your Right to Dissent in the Twenty-First Century America, and Who Killed Che? How the CIA Got Away With Murder.

NOTE: Mr. Ratner speaks on his own behalf and not for any organization with which he is affiliated.