Some Facts About How NSA Stories are Reported

by Glenn Greenwald

Several members of the august “US Journalists Against Transparency” club are outraged by revelations in yesterday’s New York Times (jointly published by der Spiegel) that the NSA has been hacking the products of the Chinese tech company Huawei as well as Huawei itself at exactly the same time (and in exactly the same way) as the US Government has been claiming the Chinese government hacks. Echoing the script of national security state officials, these journalists argue that these revelations are unjustified, even treasonous, because this is the type of spying the NSA should be doing, and disclosure serves no public interest while harming American national security, etc. etc.

True to form, however, these beacons of courage refuse to malign the parties that actually made the choice to publish these revelations – namely, the reporters and editors of the New York Times – and instead use it to advance their relentless attack on Edward Snowden. To these journalists, there are few worse sins than “stealing” the secrets of the US government and leaking them to the press (just as was true in the WikiLeaks case, one must congratulate the US Government on its outstanding propaganda feat of getting its journalists to lead the war on those who bring transparency to the nation’s most powerful factions). But beyond the abject spectacle of anti-transparency journalists, these claims are often based on factually false assumptions about how these stories are reported, making it worthwhile once again to underscore some of the key facts governing this process:

(1) Edward Snowden has not leaked a single document to any journalist since he left Hong Kong in June: 9 months ago. Back then, he provided a set of documents to several journalists and asked that we make careful judgments about what should and should not be published based on several criteria. He has played no role since then in deciding which documents are or are not reported. Those decisions are made entirely by media outlets that are in possession of those documents. Thus, calling a new NSA story “Snowden’s latest leak” or asking “why would Snowden decide to publish this now?” – as though he’s doling out documents one by one or deciding which documents should be published – is misleading in the extreme: those decisions are made exclusively by the journalists and editors of those news outlets.

(2) Publication of an NSA story constitutes an editorial judgment by the media outlet that the information should be publicBy publishing yesterday’s Huawei story, the NYT obviously made the editorial judgment that these revelations are both newsworthy and in the public interest, should be disclosed, and will not unduly harm “American national security.” For reasons I explain below, I agree with that choice. But if you disagree – if you want to argue that this (or any other) NSA story is reckless, dangerous, treasonous or whatever – then have the courage to take it up with the people who reached the opposite conclusion: in this case, the editors and reporters of the NYT (indeed, as former DOJ official Jack Goldsmith observed, the NYT‘s Huawei story was “based on leaks other than the Snowden documents”). In most other cases where critics claim reckless disclosures, the decision to publish was made by the Washington Post. The judgment to which you’re objecting – that this information should be made public – was one made by those newspapers, not by Edward Snowden.

(3) Snowden has made repeatedly clear that he did not want all of the documents he provided to be published. When Snowden furnished documents to the journalists with whom he chose to work (which, just by the way, expressly did not include the NYT), he made clear that he did not believe all of those materials should be published. Obviously, if he wanted all of those documents published, he could have and would have just uploaded them to the internet himself; he wouldn’t have needed to work with journalists.

As he has said repeatedly, he wanted journalists – not himself – to make these decisions based on what is in the public interest and what can be disclosed without subjecting innocent people to harm. He was adamant that not all of the documents he provided were appropriate for publication, and was especially clear (at least to me) that certain categories of documents not be published (which is why those who demand that all documents be released are arguing, even though they won’t acknowledge it, that we should violate our agreement with our source, disregard Snowden’s conditions for furnishing the documents, and subject him to a wide range of risks he did not want to take). See here for just a few of the examples where Snowden’s wishes in this regard are made clear.

Critics like to pretend that this is some bizarre or unusual arrangement (why would he provide documents to journalists that he didn’t think should be published?) In fact, this happens all the time: sources come to journalists and say “this set of information I’m giving you is for publication, while this information is only for background use and this other information should stay off the record.” Many of the documents Snowden provided were necessary for background, context and understanding, but not ones he thought should be published (because they could endanger or malign innocent people, or create risks for those involved in the disclosures, or be used to demonize the revelations). Other documents involved close calls that he believed journalists were better suited to evaluate than himself.

He’s made repeatedly clear since then that he did not want all documents published, but rather wanted a case-by-case assessment made of each, with the ultimate decision to publish resting with journalists, not himself. Here’s how his legal representative, the ACLU’s Ben Wizner, recently described Snowden’s instructions to journalists:

You know, the number of documents that Edward Snowden has made available to the public is zero. What he did is give information to journalists, with the instruction that they and their editors, in consultation, where necessary, with government officials, decide what was in the public interest to publish, and to withhold information that would be harmful to publish. He wanted to create a protocol that would correct for his own biases. He was someone who had spent the last almost ten years in the intelligence community. He didn’t think that his own judgments — and he has very strong judgments about what should or should not be public — were adequate to this moment and wanted to make sure that the institutions that had the experience in doing this — and these are our newspapers, who have long experience competing with the government over access and control of secret information — that that be the way that the information got published. . . .

He didn’t want and didn’t think that he should have the responsibility to decide which of these documents should be public. He wanted to appeal to the traditions, the institutions, the expertise of the media in helping to make those important judgments. That’s what we want whistleblowers to do. We don’t want them to unilaterally substitute their judgment for everybody else’s. We want them to go through these institutions that funnel and that channel that and have longer experience in making these kinds of decisions.

As Time noted in a lengthy profile when naming him Person of the Year runner-up: “Snowden does not defend every story that has been written, but he says he tried to design his actions to ­ensure that he was not the ultimate arbiter of what should and should not become public. ‘There have of course been some stories where my calculation of what is not public interest differs from that of reporters, but it is for this precise reason that publication decisions were entrusted to journalists and their editors,’ he told Time.”

Now, obviously, anyone is free to agree or disagree with Snowden’s framework for how these materials be handled and reported. I personally think the process of government consultation is often used to suppress newsworthy information, though for the NSA stories I’ve worked on, government arguments to suppress information have been rejected in at least 99% of the cases; I also think non-traditional outlets such as WikiLeaks have done a superior job in many cases with reporting classified documents than government-loyal traditional outlets.

But what you shouldn’t feel free to do is ignore that this is the framework on which Snowden insisted. You shouldn’t demand that journalists violate their agreements with him (by publishing all the documents) unless you are willing to admit that this is what you’re advocating. And you definitely shouldn’t pretend that it’s Snowden, rather than these media outlets, who are making the choices about what gets published in order to demonize him for the latest disclosures you dislike while cowardly refusing to criticize the media outlets that actually made the choice to publish them.

If you want to argue that Snowden bears some responsibility as the leaker, go ahead. But don’t mislead people about who made the choice that this information ought to be published. It was the New York Times – not Snowden – that concluded that the public should know about the NSA’s hacking of Huawei, just as it was the Washington Post and not Snowden who decided to publish virtually all of the stories about which Fred Kaplan complained.

(4) The jingoistic view of what is “newsworthy” is baseless and warped. Somewhere along the way, this idea arose that the only “legitimate” disclosures involve ones showing violations of the rights of American citizens. Anything else, this reasoning holds, is invalid, and because Snowden leaked documents that go beyond the violation of Americans’ rights, he is not a legitimate whistleblower.

Who created the uber-nationalistic standard that the only valid disclosures are ones involving the rights of Americans? Are we are all supposed to regard non-Americans as irrelevant? Is the NSA’s bulk, suspicionless surveillance of the private communications of hundreds of millions of human beings inherently proper simply because its victims aren’t American citizens? Even more extreme: are American journalists (and whistleblowers like Snowden) supposed to keep the public ignorant of anything and everything the US Government does to people provided those people aren’t blessed with American citizenship? Do you condemn whoever leaked the existence of top secret CIA black sites to Dana Priest on the ground that it didn’t involve violations of the rights of Americans? It makes sense that US government officials view the world this way: their function is to advance the self-perceived interests of the US government, but that’s not the role of actual journalists or whistleblowers.

The public interest from the Huawei story is obvious. It demonstrates that the NSA has been doing exactly that which the US Government has spent years vocally complaining is being done by China. While the US has been telling the world that the Chinese government is spying on them through backdoors in Huawei products, it’s actually the NSA that has been doing that. It also yet again gives the lie to the claim that the NSA does not engage in economic espionage.

It shows massive deceit and hypocrisy by US officials: with their own citizens and to the world. DOJ official Jack Goldsmith, often a government and NSA defender, understood this point perfectly, writing yesterday thatThe Huawei revelations are devastating rebuttals to hypocritical U.S. complaints about Chinese penetration of U.S. networks, and also make USG protestations about not stealing intellectual property to help U.S. firms’ competitiveness seem like the self-serving hairsplitting that it is.

If you’re a US government official, or a devoted loyalist to the US government, then it makes sense that you’d be angry that has been revealed. Political officials always want their deceit to be concealed rather than exposed, while jingoistic government loyalists (even when they call themselves “journalists”) want the same thing. But if you’re an actual journalist, or a whistleblower with a conscience, or a citizen who would rather know the truth than be misled by your own government, then this is an easy call. Either way, though, the call in this case – to inform rather than suppress – was made by the reporters and editors of the media outlets which chose to publish this story, so anyone who is angry about it should direct their anger to them.

 

UPDATE: Brookings’ Ben Wittes responds to all of this at Lawfare by, first, agreeing with the main point that those who object to particular NSA stories should direct those criticisms to the newspapers which decide to publish them. But he disagrees that NSA surveillance of foreigners is newsworthy. He argues that “the United States—like all countries that apply law to espionage at all—treats spying domestically and on its own nationals as legally different from spying abroad” and that such disclosures are driven by “the press’s eagerness to expose lawful conduct deemed in the national interest by the democratically elected representatives of the people.”

But there is a huge difference between spying on what are generally regarded to be legitimate foreign targets (political and military officials of adversary governments) and collecting the private communications of entire populations en masse. It’s untenable to claim that bulk surveillance has been democratically ratified given that almost all Americans, even most members of Congress, were completely unaware that any of this was happening until we reported it. One can’t reasonably claim that a government program which almost nobody knew about has been democratically approved.

More to the point: mere legality is insufficient to shield a program from justifiable transparency; conversely, exposure of illegality is not the only form of valid reporting. Take the classic whistleblowing case of the Pentagon Papers: those documents really did not reveal illegality as much as they revealed government deceit, systematic lying to the American people about the Vietnam War. The fact that such official lying may have been legal hardly means that it should have remained concealed.

The fact is that American law imposes almost no restrictions on what the US Government is permitted to do to non-Americans, but that does not mean that all such conduct should be off-limits from media reporting just because it has been legalized. Drone strikes that kill innocent people are arguably legal because Congress has approved them, and are often concealed from the public through an abuse of secrecy rules: does that mean journalists should refrain from reporting them? After all, such reporting “exposes [arguably] lawful conduct deemed in the national interest by the democratically elected representatives of the people.”

Having the US government subject the entire world to a system of suspicionless collect-it-all surveillance goes far beyond what was known or expected or approved; it goes far beyond what is common. It has profound implications for all sorts of critical values. The fact that American law does not prohibit it does not remotely mean that citizens should be kept ignorant that it is happening. Independently, the notion that the US Government should be permitted by journalists to deceive its citizenry – by, for instance, pretending that it is China rather than itself engaging in this form of industrial espionage – simply because such deceit is “legal” is entirely noxious to the most basic tenets of what journalism should be.

 

Glenn Greenwald is a journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth book, No Place to Hide, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world, will be released in April 2014. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism.

 

Obama’s New NSA Proposal and Democratic Partisan Hackery

by Glenn Greenwald

I vividly recall the first time I realized just how mindlessly and uncritically supportive of President Obama many Democrats were willing to be. In April, 2009, two federal courts, in a lawsuit brought by the ACLU, ruled that the Freedom of Information Act (FOIA) required the Pentagon to disclose dozens of graphic photos it possessed showing abuse of detainees in Iraq and Afghanistan. The Obama administration announced that, rather than contest or appeal those rulings, they would comply with the court orders and release all the photos. The ACLU praised that decision: “the fact that the Obama administration opted not to seek further review is a sign that it is committed to more transparency.”

This decision instantly turned into a major political controversy. Bush-era neocons, led by Bill Kristol and Liz Cheney, excoriated Obama, arguing that release of the photos would endanger American troops and depict the US in a negative light; Cheney expressly accused Obama of “siding with the terrorists” by acquiescing to the ruling. By contrast, Democrats defended Obama on the ground that the disclosures were necessary for transparency and the rule of law, and they attacked the neocons for wanting to corruptly hide evidence of America’s war crimes. I don’t think there was a single Democratic official, pundit, writer, or blogger who criticized Obama for that decision.

But then – just two weeks later – Obama completely reversed himself, announcing that he would do everything possible to block the court order and prevent it from taking effect. ABC News described Obama’s decision as “a complete 180.” More amazingly still, Obama adopted the exact arguments that Bill Kristol and Liz Cheney were making over the prior two weeks to attack him specifically and transparency generally: to justify his desire to suppress this evidence, Obama said that “the most direct consequence of releasing the [photos], I believe, would be to further inflame anti-American opinion and to put our troops in danger.”

Now, obviously, the people who had been defending Obama’s original pro-transparency position (which included the ACLU, human rights groups, and civil liberties writers including me) changed course and criticized him. That’s what rational people, by definition, do: if a political official takes a position you agree with, then you support him, but when he does a 180-degree reversal and takes the exact position that you’ve been disagreeing with, then you oppose him. That’s just basic. Thus, those of us who originally defended Obama’s decision to release the photos turned into critics once he took the opposite position – the one we disagreed with all along – and announced that he would try to suppress the photos.

But that’s not what large numbers of Democrats did. Many of them first sided with Obama when his administration originally announced he’d release the photos. But then, with equal vigor, they also sided with Obama when – a mere two weeks later – he took the exact opposition position, the very anti-transparency view these Democrats had been attacking all along when voiced by Bill Kristol and Liz Cheney.

At least for me, back then, that was astonishing to watch. It’s one thing to strongly suspect that people are simply adopting whatever views their party’s leader takes. But this was like the perfect laboratory experiment to prove that: Obama literally took exact opposition positions in a heated debate within a three week period and many Democrats defended him when he was on one side of the debate and then again when he switched to the other side.

When Democrats were defending Obama’s decision to suppress the photos, I kept asking whether there was a single one of them – just one – who had criticized Obama two weeks earlier when his administration announced they’d released the photos. After all, if they really believed (as they were now claiming) that suppressing the photos was the right thing to do because their release would endanger the troops, shouldn’t they have been objecting when Obama two weeks earlier said he’d release them?

I never found one Democrat defending Obama’s photo suppression who had criticized him earlier when he said he’d release them. That’s when I fully internalized that many Democrats literally had no actual political beliefs other than we support Obama in everything that he does, even when he takes precisely opposite positions in a three week period (most amazingly of all, Obama ultimately succeeded in suppressing the photos – which still have never been seen – not by successfully appealing the court order, but by supporting and then signing into law an amendment to the 40-year old FOIA - sponsored by Joe Lieberman and Lindsey Graham - that simply exempted the photos from the law).

We’re now about to have a similar lab experiment, this time in the context of the NSA. The New York Times‘ Charlie Savage reported last night that Obama “is preparing to unveil a legislative proposal for a far-reaching overhaul of the National Security Agency’s once-secret bulk phone records program in a way that — if approved by Congress — would end the aspect that has most alarmed privacy advocates since its existence was leaked last year.” In sum, “the NSA would end its systematic collection of data about Americans’ calling habits.”

This proposal differs in significant respects from the incredibly vague and cosmetic “reforms” Obama suggested in his highly touted NSA speech in January. Although bereft of details, it was widely assumed that Obama’s January proposal would not end the bulk data collection program at all, but rather simply shift it to the telecoms, by simultaneously requiring that the telecoms keep all calling records for 5 years (the amount of time the NSA now keeps those records) and make them available to the government on demand. But under Obama’s latest proposal, the telecoms “would not be required to retain the data for any longer than they normally would” (the law currently requires 18 month retention) and “the NSA could obtain specific records only with permission from a judge, using a new kind of court order.”

As always with Obama, it remains to be seen whether his words will be followed by any real corresponding actions. That he claims to support a bill does not mean he will actually try to have Congress enact it. The details, still unknown, matter a great deal. And even if this did end the domestic bulk collection spying program, it would leave undisturbed the vast bulk of the NSA’s collect-it-all system of suspicionless spying.

Nonetheless, this clearly constitutes an attempt by Obama to depict himself as trying to end the NSA’s domestic bulk surveillance program, which was the first program we reported with Snowden documents. I agree with the ACLU’s Jameel Jaffer, who told the New York Times: “We have many questions about the details, but we agree with the administration that the NSA’s bulk collection of call records should end.”

This new proposal would not, as some have tried to suggest, simply shift the program to telecoms. Telecoms – obviously – already have their customers’ phone records, and the key to any proposal is that it not expand the length of time they are required to retain those records (though telecoms only have their specific customers’ records, which means that – unlike the current NSA program – no one party would hold a comprehensive data base of all calls). As reported by Savage, Obama’s proposal does nothing to change how long telecoms keep these records (“the administration considered and rejected imposing a mandate on phone companies that they hold on to their customers’ calling records for a period longer than the 18 months that federal regulations already generally require”). That’s why, if enacted as he’s proposing it, Obama’s plan could actually end the NSA’s bulk collection program.

That puts hard-core Obama loyalists and pro-NSA Democrats – the ones that populate MSNBC – in an extremely difficult position. They have spent the last 10 months defending the NSA (i.e., defending Obama) by insisting that the NSA metadata program is both reasonable and necessary to Keep Us Safe. But now Obama claims he wants to end that very same program. So what will they do?

If they had even an iota of integrity or intellectual honesty, they would instantly and aggressively condemn Obama. After all, he’s now claiming to want to end a program that they have been arguing for months is vital in Keeping Us Safe. Wouldn’t every rational person, by definition, criticize a political leader who wants to abolish a program that they believe is necessary to stop terrorism and preserve national security?

But that’s not what will happen. After spending months praising the NSA for responsibly overseeing this critical program, they will now hail Obama for trying to end it. When he secretly bulk collects the calling data on all Americans, it shows he’s a pragmatic and strong leader who Keeps Us Safe; when he tries to end the very same program, it shows he’s flexible and devoted to our civil liberties — just as he was right to release the torture photos and also right to suppress them. The Leader is right when he does X, and he’s equally right when he does Not X. That’s the defining attribute of the mindset of a partisan hack, an authoritarian, and the standard MSNBC host.

As for the substantive reform, the fact that the President is now compelled to pose as an advocate for abolishing this program – the one he and his supporters have spent 10 months hailing – is a potent vindication of Edward Snowden’s acts and the reporting he enabled. First, a federal court found the program unconstitutional. Then, one of the President’s own panels rejected the NSA’s claim that it was necessary in stopping terrorism, while another explicitly found the program illegal. And now the President himself depicts himself as trying to end it. Whatever test exists for determining whether “unauthorized” disclosures of classified information are justified, Snowden’s revelations pass the test with ease. That President Obama now proclaims the need to end a domestic spying program that would still be a secret in the absence of Snowden’s whistleblowing proves that quite compellingly.

 

Glenn Greenwald is a journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media.

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