Category Archives: Free speech

A chilling act of intimidation and harassment

Glenn Greenwald

Glenn Greenwald

This is pretty shocking. On Sunday, David Miranda, the partner of lawyer/activist/journalist Glenn Greenwald, was detained at Heathrow Airport in London for nearly nine hours and questioned under Britain’s anti-terrorism laws. His computer and other electronics gear were confiscated. Greenwald, who writes for The Guardian, describes what happened here, writing:

This is obviously a rather profound escalation of their attacks on the news-gathering process and journalism. It’s bad enough to prosecute and imprison sources. It’s worse still to imprison journalists who report the truth. But to start detaining the family members and loved ones of journalists is simply despotic.

Greenwald, along with filmmaker Laura Poitras, has been the principal media conduit for Edward Snowden’s revelations about the National Security Agency’s mass surveillance programs. Miranda had been visiting Poitras in Berlin and was on his way home to Rio de Janeiro. (If you haven’t read it yet, here is Peter Maass’ New York Times Magazine story on how Poitras, Snowden and Greenwald came together.)

What were the British security agents up to? Who knows? Maybe they genuinely believed Miranda might be carrying data they wanted to seize. Maybe they were trying to send a message to Greenwald and any other journalists about the consequences of working with a leaker such as Snowden.

Regardless of what you think of Snowden’s actions, there is an enormous difference between leaking and journalism. A generation ago, Daniel Ellsberg was put on trial for providing the Pentagon Papers to The New York Times and The Washington Post; the Times and the Post weren’t prosecuted for publishing them.

The British enjoy fewer press rights than we do in the United States. But Britain is our closest ally, and the U.S. and British security services may be presumed to be working together on the Snowden matter.

The danger is that the U.S. is moving ever closer to criminalizing certain types of high-stakes, leak-based journalism. As I argued several months ago, there is nothing to stop the government from prosecuting journalists for publishing such information other than custom and the fear of a public backlash.

And consider what Snowden has accomplished. In just a few months, public awareness of and debate over government surveillance that came into place after the terrorist attacks of 9/11 have finally reached critical mass. New York University journalism professor Jay Rosen calls it “The Snowden Effect”:

Direct and indirect gains in public knowledge from the cascade of events and further reporting that followed Edward Snowden’s leaks of classified information about the surveillance state in the U.S.

Given President Obama’s oft-proven contempt for the role of a free press in a democratic society, we may be moving closer to the time that such constraints melt away.

Update: My outrage has not diminished, but my understanding of what happened has shifted. As this New York Times story makes clear, Miranda’s trip to Berlin was paid for by The Guardian. It appears that he was facilitating Greenwald’s and Poitras’ journalism, even if he’s not a journalist himself. So this was not harassment of a journalist’s family member. It was harassment of a journalist, or at least of someone engaged in journalistic activities.

Photo (cc) via Wikimedia Commons and published under a Creative Commons license. Some rights reserved.

Another year of outrages against free speech

The 16th annual Muzzle Awards are now online at WGBH News, as well as at The Providence Phoenix and The Portland Phoenix. A New England tradition continues.

Get ready for the 16th Annual Muzzle Awards

When The Boston Phoenix ceased publication in March, I started casting about for a new home for the Muzzle Awards — an annual Fourth of July round-up of outrages against free speech in New England that I began writing in 1998.

On Tuesday we made it official — the 16th Annual Muzzle Awards will be published on Thursday by WGBH News. I talked about the Muzzles on “Boston Public Radio” with Jim Braude and Margery Eagan. We gave a sneak preview of some of the “winners,” including U.S. Attorney Carmen Ortiz, Boston Police Commissioner Ed Davis and Maine Gov. Paul LePage.

The Muzzles will also be published in The Providence Phoenix and The Portland Phoenix, which are still alive and well.

I think WGBHNews.org will prove to be a good home base for the Muzzles. Boston civil-liberties lawyer Harvey Silverglate, who came up with the idea all those years ago, is continuing with his Campus Muzzles. Former Phoenix editor Peter Kadzis, who’s now at WGBH, was instrumental in bringing the Muzzles to the station and expertly edited them. Also playing key roles were Phil Redo, managing director of WGBH’s radio operations; Linda Polach, executive producer of “Greater Boston” and “Beat the Press”; and Abbie Ruzicka, an associate producer who handled Web production duties.

Like a phoenix rising from the ashes …

Edward Snowden and the peril facing journalism

Edward Snowden

Edward Snowden

This commentary was published earlier at The Huffington Post.

The editors of The New York Times appear to have forgotten an important principle: the First Amendment is for all of us, and does not grant any special privileges to the institutional press. Thus if Edward Snowden is prosecuted for leaking classified documents about the National Security Agency’s secret surveillance programs, the news organizations that published those documents could face criminal charges as well.

The possibility that journalists could be in legal jeopardy for doing their jobs seems not to have occurred to whoever wrote an editorial in today’s Times, which argues that Snowden should be prepared to pay the price for civil disobedience by way of his leaks to The Guardian and The Washington Post.

Though the editorial dismisses the absurd notion that Snowden has committed treason, it concludes with this observation, which comes across as semi-sympathetic but contains toxic implications: “Mr. Snowden may well be going to jail for exposing practices that should never have been secret in the first place.”

In fact, if Snowden, as seems likely, is charged under the Espionage Act of 1917, there is nothing to stop the government from going after The Washington Post as well — or The Guardian, if someone would like to seek extradition of Glenn Greenwald, who broke the story, and his editor, Alan Rusbridger.

American journalists in these situations operate on the premise that they are free to publish information even if the source or sources who gave it to them violated the law in obtaining it. That’s largely true — First Amendment protections against censorship are extraordinarily high. The corollary, though, is that there may be consequences to be paid post-publication.

The best-known example is the Pentagon Papers, a case that should be near and dear to the hearts of Times editors. In a 6-3 decision, the U.S. Supreme Court ruled that the Times and the Post could not be prevented from publishing the government’s secret history of the Vietnam War.

But as civil-liberties lawyer Harvey Silverglate pointed out in a 2006 article for The Boston Phoenix, five of the nine justices essentially invited the government to file charges against the Times and the Post after publication — and the Nixon administration was preparing to do just that before it got caught up in the burgeoning Watergate scandal.

Silverglate was concerned that the Times faced possible charges under the Espionage Act for revealing the existence of the Bush administration’s warrantless wiretapping program. Even though the program illegally circumvented the Foreign Intelligence Surveillance Court, then-president George W. Bush called the Times’ reporting “a shameful act” — and Gabriel Schoenfeld, writing in Commentary, was just one on the neocon right who argued that the Times should be prosecuted.

More recently, the Times published many of the WikiLeaks documents exposed by Bradley Manning, who is now on trial and who may face a life sentence. And in 2010 John Cook posted a short piece in Gawker making the commonsense observation that the Times potential liability was precisely the same as that of WikiLeaks founder Julian Assange, who had been targeted by Attorney General Eric Holder. Cook wrote:

So if it was a crime when Assange obtained the database, why wasn’t it a crime when the Times did? The Espionage Act makes no distinctions when it comes to sources of defense information: It’s a crime to “obtain [it] from any person, or from any source whatever.” Assange got it from Manning, the Times got it from the Guardian; both transactions are equally criminal under the act.

More than a year ago, I argued that President Barack Obama was engaged in a “war on journalism” stemming from his administration’s obsession with rooting out leakers. Recently we learned that the Justice Department had spied on the Associated Press and on Fox News reporter James Rosen, and had even gotten a judge to sign a search warrant identifying Rosen as a criminal co-conspirator. Now U.S. Rep. Peter King, R-N.Y., is calling for journalists to be prosecuted for publishing the NSA documents leaked by Snowden.

This is a moment of great peril for journalism. With 56 percent of Americans saying they don’t mind if the government monitors their phone records, public opinion is hardly on the side of whistleblowers and the news organizations that work with them.

Whether we approve of everything Edward Snowden did or not, The New York Times and others in our craft ought to show more solidarity. If he is in trouble, so are all of us.

Misplaced priorities at the Boston Police Dept.

Howard Zinn

Howard Zinn

Last October the Massachusetts chapter of the ACLU revealed that the Boston Police Department had been spying on left-wing activists such as the late Howard Zinn.

The police were working with the Boston Regional Intelligence Center (BRIC), a so-called fusion center through which the authorities could coordinate with the FBI and other agencies to find out who might be plotting a terrorist attack. Zinn, a peace activist, an elderly professor and World War II hero, was clearly someone to keep a close eye on.

Of course, we now know that at the same time the police were wasting their resources on Zinn, they were ignorant of what the FBI knew about Tamerlan Tsarnaev. Among those putting two and two together in the last few weeks were Michael Isikoff of NBC News;  Boston journalist Chris Faraone, who produced this for DigBoston; and Jamaica Plain Gazette editor John Ruch, who wrote an analysis.

Although it would be a stretch well beyond the facts to suggest that if the police hadn’t been watching left-wing and Occupy protesters they might have caught Tsarnaev, the BPD was certainly looking in all the wrong places. The police did a good and courageous job of reacting to the Boston Marathon bombings. The issue is how they spent their time and resources in trying to prevent a terrorist attack.

Spying on the antiwar left makes no more sense today than it did in the 1960s and ’70s. Police Commissioner Ed Davis needs to take a break from giving commencement speeches in order to answer a few questions.

And while I’m on the subject of questionable law-enforcement practices, I sure hope we find out what actually happened in Florida last week. Don’t you?

Targeting of the AP is neither new nor illegal. Just outrageous.

AP logoA lot of outrage has been generated over the Department of Justice’s secret subpoena of the Associated Press’ phone records, and I share that outrage.

But what the DOJ did was not new and not illegal — it was, rather, the latest example of overreach by an administration that has demonstrated its contempt for the role of a free press in a democratic society. Which, of course, makes the Obama White House no different from (though more zealous than) most of its predecessors.

Erik Wemple of The Washington Post explains by dredging up a similar, if less sweeping, case from years past, and in the process does a good job of showing why it matters. If the press can’t promise sources anonymity, it can’t perform its role as a check on government.

An editorial in The New York Times endorses a long-stalled federal shield law that would provide journalists with greater protections than they now have with regard to protecting confidential sources — a move that President Obama is now pushing for.

But what does Obama care? As the Times points out, such a law probably would have made no difference in the AP scandal, since all the DOJ would have had to do was invoke one of the exceptions built into the bill.

The next time you hear someone say that the DOJ’s actions violated the First Amendment, run the other way. A century’s worth of rulings by the U.S. Supreme Court holds that though the media have an enormous amount of protection under the First Amendment to publish or broadcast, they have no more rights than ordinary citizens when it comes to newsgathering.

Here is the Supreme Court in Branzburg v. Hayes (1972) explaining why it would be impossible to created a protected class of journalists who would enjoy an absolute right to protect their sources:

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.

The reason that Eric Holder and company could secretly subpoena the AP’s phone records is because they can do it to anyone. It’s a matter not of the Constitution but of judgment — something the Obama administration has demonstrated very little of on this issue.

AP probe should be a wake-up call for journalists

Trevor TimmBy Trevor Timm

As part of a new leak investigation, the Justice Department has secretly obtained the call records for 20 phone lines owned by the Associated Press, which could put sources for as many as 100 reporters at risk. The AP called the move a “massive and unprecedented intrusion,” saying they “regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.”

We agree. It’s time to stop looking at all of these leak investigations and prosecutions as ancillary to press freedom; they are a direct attack on it. This should be an important wake-up call for journalists.

While this incident has brought the Justice Department’s crackdown on leakers to a new extreme, it’s important to remember, this storm has been brewing for a while now. In five years, the Obama administration has prosecuted more leakers under the Espionage Act than all other administrations combined, and virtually all these prosecutions have engulfed journalists in one way or another.

As part of this current investigation, we’ve known the FBI has been data-mining government officials’ phone and email records for months, looking for links to journalists on a systematic scale. The Washington Post reported in January, the FBI is using new, “sophisticated software to identify names, key words and phrases embedded in emails and other communications, including text messages, which could lead them to suspects.”

According to the Post, “The FBI also looks at officials’ phone records — who called whom, when, for how long.” Anytime the FBI found a government official has contact with the unknown number of “particular” journalists, FBI agents were “confronting” officials with this information.

A similar leak investigation to the one that has engulfed the AP is aimed at New York Times sources for its investigation into secret U.S. cyberattacks. The government refused to comment if the Justice Department has gone to similar extremes with The New York Times’ phone lines.

Regardless, as The New York Times reported on its front page in August of last year, these leak investigations are “casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings.” The Huffington Post recently interviewed several of the nation’s most prominent national security journalists, all of whom confirmed it’s a perilous time for journalists who are reporting on what the government considers secret.

The Justice Department does not deny this. When asked about the Obama administration’s crackdown on leakers last June, a senior Justice Department (DOJ) official told longtime national security reporter Shane Harris that the DOJ is “out for scalps.” Harris’ DOJ source also “made it clear that reporters who talked to sources about classified information were putting themselves at risk of prosecution.”

And it may be about to get worse.

In another leak case, New York Times reporter James Risen has been fighting a subpoena from Obama’s Justice Department for years. The Obama DOJ is after his sources for a chapter in his book “State of War.” (You can read the incredible chapter at issue, about a spectacularly bungled CIA mission that allegedly handed nuclear bomb blueprints to Iran, here.)

The Obama administration inherited the case from the Bush administration, and despite the fact that the district court judge sided with Risen during both the grand jury and trial, DOJ has continued to appeal the case. Last May, the DOJ argued before the Fourth Circuit that reporters’ privilege does not exist at all for national security reporters. Disturbingly, the Justice Department said that Risen protecting his sources was “analogous” to refusing to testify about receiving drugs from a confidential source.

The Fourth Circuit Appeals Court decision could come down any day now, and it will undoubtedly be the most important press freedom decision in a decade or more.

And while it has curiously receded from national headlines, the Justice Department also still has an active grand jury investigation open against WikiLeaks for publishing classified information. If such a prosecution succeeds, it will be open season on media organizations that publish stories that touch on information the government considers secret, putting virtually every national security journalist at risk of prosecution.

In fact, the House of Representatives held a hearing just last July in which multiple congressmen openly discussed throwing New York Times journalists in jail for publishing classified information about secret cyberattacks and CIA drone strikes. By staying quiet about the WikiLeaks grand jury, journalists only increase this risk.

The White House press secretary was quick to state that the administration is “not involved in decisions” in the AP investigation and heard about it from the media. White House officials are under investigation for this particular leak as well, so that’s no surprise. But one should not forget: the White House created this war-on-leaks monster. Congress has only encouraged its expansion, instead of investigating the wrongdoing that many of the leaks exposed.

And now, it’s out of control.

Trevor Timm is co-founder and executive director of the Freedom of the Press Foundation. Republished by permission.