Making sense of the intelligence agencies’ report on Russia and the election

Vladimir Putin. Photo (cc) by xx.
Vladimir Putin. 2015 photo via Kremlin.ru.

Like all of us, I am trying to make sense of the intelligence agencies’ report in which they found that the Russian government, going right up to the Shirtless Horseman himself, interfered in the 2016 election on Donald Trump’s behalf.

I have read all of it. And it is hard to overlook the lack of any actual evidence, which is apparently laid out in classified versions of the report. As a result, a number of observers are erecting “caution” signs to guard against anyone drawing a definitive conclusion. Scott Shane writes in The New York Times:

What is missing from the public report is what many Americans most eagerly anticipated: hard evidence to back up the agencies’ claims that the Russian government engineered the election attack. That is a significant omission: Mr. Trump has been expressing skepticism for months that Russia was to blame, variously wondering whether it might have been China, or a 400-pound guy, or a guy from New Jersey.

On Twitter, too, I’m seeing skepticism from the right and, of course, from the ubiquitous Glenn Greenwald, who’s been going off on it for hours. Here’s one example:

But I think focusing on the lack of evidence overlooks the central reality: Reams of evidence were put before us over the course of many months during the presidential campaign. Consider what we know for a fact:

  • Emails were stolen from the Clinton campaign and the Democratic National Committee.
  • Those emails landed at WikiLeaks, whose leader, Julian Assange, is clearly (and at the very least) a Russian ally.
  • WikiLeaks published multiple emails that were embarrassing to the Clinton campaign and none that reflected badly on Trump.

So yes, in one sense the intelligence agencies offered no evidence for their assertions. But in another, more important sense, we’ve already seen the evidence. The main role of the CIA, the FBI, and the NSA was to tell us that they agree, that we’re not crazy, and what we all saw play out was exactly what it appeared to be.

Did Russian interference cost Clinton the election? As Sam Wang has written at the Princeton Election Consortium, FBI Director James Comey’s horrendously misguided last-minute decision to reopen the investigation into Clinton’s private email server almost certainly put Trump over the top. Wang writes:

Opinion swung toward Trump by 4 percentage points, and about half of this was a lasting change. This was larger than the victory margin in Michigan, Pennsylvania, Florida, and Wisconsin. Many factors went into this year’s Presidental race, but on the home stretch, Comey’s letter appears to have been a critical factor in the home stretch.

Russian interference was less of a factor than Comey’s letter. But it nevertheless kept the media’s and the public’s attention on Clinton and emails, even though questions about her server and hacking by the Russians had nothing to do with each other. We can’t know for sure, but my sense is that Comey’s actions by themselves elected Trump, and that Russian subterfuge added to the damage.

What happens now? If it could somehow be shown that Trump himself had colluded with the Russians, he might face impeachment and even prosecution on espionage charges. The word treason tends to get thrown around way too lightly, but a Trump-Putin alliance to steal the election might very well qualify.

Such actions would require not just persuasive evidence that Trump was involved but also principled members of the Republican Congress and of Trump’s Justice Department. I wouldn’t hold my breath.

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On Greenwald, Kinsley is both right and wrong

Michael Kinsley
Michael Kinsley

A few thoughts about Michael Kinsley’s much-criticized New York Times review of Glenn Greenwald’s book “No Place to Hide,” an account of his role in the Edward Snowden leaks.

Kinsley is technically correct in asserting that the government has — and should have — the final word when it comes to deciding whether secret information should be made public. Thus I part company with the likes of Gawker’s Hamilton Nolan, who, in a post headlined “Michael Kinsley Comes Out Against Journalism,” fulminates: “Michael Kinsley does not believe that a free press should be allowed to [expose official secrets]. He believes that the decision to tell government secrets ‘must ultimately be made by the government.'”

It’s Nolan’s “should be allowed” that bears scrutiny. In fact, the Supreme Court has made it clear that the government may act to prevent secrets from being revealed if those revelations would cause a serious breach of national security. Here is how the Court put it in the 1931 case of Near v. Minnesota:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.

The government may also prosecute both leakers and journalists post-publication, as a majority of the Court all but invited the Nixon administration to do in the Pentagon Papers case — and as Harvey Silverglate explains in this 2006 Boston Phoenix essay.

If you think about it, how could it be otherwise? It’s so easy to conjure up scenarios involving nuclear weapons, terrorism and the like under which censorship and prosecution would be justified that it’s not even worth the effort to spell them out (although Chief Justice Charles Evans Hughes tried to do just that in Near).

But I emphatically part company with Kinsley over his sneering, dismissive tone, and his shocking failure to understand the role of a free press (or even a press that’s not quite as free as Hamilton Nolan imagines) in a democratic society. Because if the ultimate authority rests with the government, there are nevertheless times when leakers, individual journalists and the institutional press must stand up to the government and risk its wrath in order to serve the public interest. That’s what The New York Times and The Washington Post did in publishing the Pentagon Papers, the government’s own secret history of the Vietnam War.

And I would argue that that’s what Snowden, Greenwald, Barton Gellman (curiously absent from Special Agent Kinsley’s arrest warrant), The Guardian and The Washington Post did in exposing the NSA’s practices.

I wrote more about the legal background for The Huffington Post last June.

Photo (cc) by the Aspen Institute and published under a Creative Commons license. Some rights reserved.

Globe wins Pulitzer for ‘story none of us wanted to cover’

Brian McGrory during the Pulitzer announcement.
Brian McGrory during the Pulitzer announcement. (Photo courtesy of The Boston Globe.)

This article was published earlier at WGBH News.

Within moments of the announcement that The Boston Globe had won the Pulitzer Prize for Breaking News Reporting, Martine Powers tweeted from the newsroom. “This was a story none of us wanted to cover,” she quoted editor Brian McGrory as saying. The staff, she said, then observed a moment of silence at McGrory’s request for the victims of the Boston Marathon bombings.

The Globe easily could have won two or three Pulitzers for its coverage of the bombings and their aftermath. The breaking-news award, of course, was well-deserved, and frankly it was unimaginable that it would go to anyone else. But the paper also had worthy marathon-related finalists in Breaking News Photography (John Tlumacki and David L. Ryan) as well as Commentary (Kevin Cullen, who emerged as the voice and conscience of the city after the attack).

McGrory’s classy response to winning underscores the sad reality that the Globe’s excellent coverage was driven by a terrible tragedy — the worst terrorist attack on U.S. soil since Sept. 11, 2001. (The Globe was also a finalist in Editorial Writing, as Dante Ramos was honored for a non-marathon-related topic: improving the city’s night life.)

The Pulitzer also caps what has been a remarkable year for the Globe. On Marathon Monday 2013, McGrory was relatively untested as editor and the paper’s prospects were uncertain, as the New York Times Co. was trying to unload it for the second time in four years.

The Globe’s marathon coverage — widely praised long before today’s Pulitzers were announced — have defined McGrory’s brief term as editor as surely as the paper’s pedophile-priest coverage (which earned a Pulitzer for Public Service) defined Marty Baron’s. Moreover, the Globe now has a local, deep-pockets owner in John Henry who’s willing to invest in journalism.

But the focus should be on Martin Richard, Krystle Campbell, Lingzi Lu and Sean Collier, as well as their families and all the other survivors. Good for McGrory for reminding everyone of that.

A couple of other Pulitzer notes:

• A lot of observers were waiting to see whether the judges would honor the stories based on the Edward Snowden leaks. They did, as the Pulitzer for Public Service went to The Guardian and The Washington Post.

Glenn Greenwald and Laura Poitras, then affiliated with The Guardian and now with the start-up First Look Media, as well as Barton Gellman of the Post, were the recipients of the Snowden leaks, which revealed a vast U.S. spying apparatus keeping track of ordinary citizens and world leaders both in the United States and abroad.

The choice is bound to be controversial in some circles. U.S. Rep. Peter King, R-N.Y., has already called the award “a disgrace.” But it was the ultimate example of journalism speaking truth to power, and thus was a worthy choice.

• The oddest move was the Pulitzer judges’ decision not to award a prize in Feature Writing. I thought it might go to the New York Times’ series “Invisible Child: Dasani’s Homeless Life,” or possibly to the Globe’s “The Fall of the House of Tsarnaev.” (I should note that neither of those stories was listed as a finalist.)

The Pulitzer process can be mysterious. But it would be interesting to see if someone can pry some information out of the judges to find out why they believed there wasn’t a single feature story in 2013 worthy of journalism’s highest honor.

Conflicts of interest and the new media moguls

5790408612_8952178d3f_mWashington Post executive editor Martin Baron has rejected a demand by a group of left-leaning activists that the Post more fully disclose Amazon.com’s business dealings with the CIA.

Nearly 33,000 people have signed an online petition put together by RootsAction, headed by longtime media critic Norman Solomon, to call attention to Amazon’s $600 million contract to provide cloud services to the CIA. The Post’s owner is Jeff Bezos, the founder and chief executive of Amazon. Here is the text of the petition:

A basic principle of journalism is to acknowledge when the owner of a media outlet has a major financial relationship with the subject of coverage. We strongly urge the Washington Post to be fully candid with its readers about the fact that the newspaper’s new owner, Jeff Bezos, is the founder and CEO of Amazon which recently landed a $600 million contract with the CIA. The Washington Post’s coverage of the CIA should include full disclosure that the sole owner of the Post is also the main owner of Amazon — and Amazon is now gaining huge profits directly from the CIA.

Baron, in his response, argues that the Post “has among the strictest ethics policies in the field of journalism, and we vigorously enforce it. We have routinely disclosed corporate conflicts when they were directly relevant to our coverage. We reported on Amazon’s pursuit of CIA contracts in our coverage of plans by Jeff Bezos to purchase The Washington Post.” Baron goes on to point out that the Post has been a leader in reporting on the National Security Agency and on the CIA’s involvement in the Colombian government’s fight against an insurgency, writing:

You can be sure neither the NSA nor the CIA has been pleased with publication of their secrets.

Neither Amazon nor Jeff Bezos was involved, nor ever will be involved, in our coverage of the intelligence community.

(Note: I first learned about the petition from Greg Mitchell’s blog, Pressing Issues.)

The exchange between RootsAction and Baron highlights the conflicts of interest that can arise when wealthy individuals such as Bezos buy in to the newspaper business. It’s a situation that affects The Boston Globe as well, as its editors juggle the lower-stakes conflict between John Henry’s ownership of the Globe and his majority interest in the Red Sox.

Baron himself is not unfamiliar with the Red Sox conflict, as the New York Times Co., from whom Henry bought the Globe, owned a minority stake in the team and in New England Sports Network, which carries Red Sox games, during most of Baron’s years as Globe editor.

The way the Globe handled it during those years was just about right: don’t disclose in sports stories, but disclose whenever the paper covers the Red Sox as a business. Current Globe editor Brian McGrory has insisted that Henry will not interfere. Henry, in a speech before the Greater Boston Chamber of Commerce last week, said he would not breech the wall of separation between the Globe’s news operations and its business interests.

Of course, it’s not as though the era in which news organizations were typically owned by publicly traded corporations was free of such conflicts. (The Times Co., after all, is a publicly traded corporation, though the Sulzberger family calls the shots.) Media critic Danny Schechter noted in his book “Embedded: Weapons of Mass Deception” that MSNBC — then in its pre-liberal phase — was a cheerleader for the war in Iraq even as its then-corporate parent, General Electric Co., was a leading military contractor.

But the rise of a new breed of media moguls such as Bezos, Henry and Aaron Kushner of the Orange County Register, who buy their way into the news business with their own personal wealth, seems likely to bring the issue of conflicts to the fore. The same is true of a media entrepreneur of a different sort — eBay founder Pierre Omidyar, who is launching an online venture called First Look Media with (among others) the journalists Glenn Greenwald and Laura Poitras.

It is the very fact that these individuals have been successful that makes them such intriguing players in the quest to reinvent the news business. But disclosure and non-interference need to be at the forefront of their ethical codes.

Pierre Omidyar’s dicey embrace of nonprofit status

220px-Pomidyarji
Pierre Omidyar

New York University journalism professor Jay Rosen, who’s part of the high-profile news project being launched by the tech entrepreneur Pierre Omidyar, writes that the operation’s journalism will be incorporated as a 501(c)(3) nonprofit.

But will it really be that simple? As I wrote earlier this year, the IRS has cracked down on 501(c)(3) status for journalism, apparently (it’s not entirely clear) because the agency doesn’t consider journalism to be an approved “educational” activity.

Rosen calls the venture, to be named First Look Media, a “hybrid” that melds for-profit and nonprofit operations: there will also be a for-profit technology company that, if it becomes profitable, will subsidize the journalism.

But that’s not what we normally think of when discussing hybrid journalism models. The usual route is for a nonprofit of some kind to own a for-profit news organization. The example most often cited (including by Rosen) is the Tampa Bay Times, which is owned by the Poynter Institute, a journalism research and training organization.

The difference matters, because a nonprofit news organization is prohibited from endorsing political candidates and engaging in other activities that might be deemed partisan. By contrast, a for-profit enjoys the full protection of the First Amendment, even if it’s owned by a nonprofit.

Not that a nonprofit can’t do great journalism — nonprofits ranging from Mother Jones to the New Haven Independent have proved that. But it will be interesting to see how First Look and its high-profile contributors, including Glenn Greenwald and Laura Poitras, negotiate the tricky nonprofit landscape.

Photo via Wikipedia.

Keller and Greenwald on journalistic neutrality

Today’s New York Times debate between Bill Keller and Glenn Greenwald is terrific — better than I had expected. For me, the high point is how they make the case for fair, neutral journalism (Keller) and fair journalism with a clearly articulated point of view (Greenwald). I don’t think I’ve ever seen anyone do it better on either side.

Greenwald first:

A journalist who is petrified of appearing to express any opinions will often steer clear of declarative sentences about what is true, opting instead for a cowardly and unhelpful “here’s-what-both-sides-say-and-I-won’t-resolve-the-conflicts” formulation. That rewards dishonesty on the part of political and corporate officials who know they can rely on “objective” reporters to amplify their falsehoods without challenge (i.e., reporting is reduced to “X says Y” rather than “X says Y and that’s false”).

Worse still, this suffocating constraint on how reporters are permitted to express themselves produces a self-neutering form of journalism that becomes as ineffectual as it is boring. A failure to call torture “torture” because government officials demand that a more pleasant euphemism be used, or lazily equating a demonstrably true assertion with a demonstrably false one, drains journalism of its passion, vibrancy, vitality and soul.

Now Keller:

I don’t think of it as reporters pretending they have no opinions. I think of it as reporters, as an occupational discipline, suspending their opinions and letting the evidence speak for itself. And it matters that this is not just an individual exercise, but an institutional discipline, with editors who are tasked to challenge writers if they have given short shrift to contrary facts or arguments readers might want to know.

The thing is, once you have publicly declared your “subjective assumptions and political values,” it’s human nature to want to defend them, and it becomes tempting to omit or minimize facts, or frame the argument, in ways that support your declared viewpoint. And some readers, knowing that you write from the left or right, will view your reporting with justified suspicion.

I’m sympathetic to both points of view. But what I especially like about Keller’s is the idea that stating one’s opinions changes not just how the audience sees the journalist, but also how the journalist goes about his own work.

I’ve long argued that even an opinion journalist shouldn’t disclose her voting intentions. That’s because if it’s your job to take positions, it’s a lot harder to change those positions once you’ve joined someone’s team.

There’s a lot more where that came from, including much about Greenwald’s newly announced venture funded by eBay rich guy Pierre Omidyar — explained at some length by the redoubtable Jay Rosen.

What happened at The Guardian could happen here

Chief_Justice_Charles_Evans_Hughes
Charles Evans Hughes

This commentary was first published at The Huffington Post.

As you have no doubt already heard, Alan Rusbridger, editor of The Guardian, wrote on Monday that British security agents recently visited the newspaper’s headquarters and insisted that hard drives containing leaked documents from Edward Snowden be smashed and destroyed in their presence. The incident, Rusbridger said, took place after a “very senior government official” demanded that the materials either be returned or disposed of.

Rusbridger’s report followed the nearly nine-hour detention of Glenn Greenwald’s partner, David Miranda, at London’s Heathrow Airport. Greenwald has written the bulk of The Guardian’s articles about the Snowden documents, and Miranda had been visiting filmmaker Laura Poitras, who has worked extensively with Snowden and Greenwald, in Berlin.

We are already being told that such thuggery couldn’t happen in the United States because of our constitutional protections for freedom of the press. For instance, Ryan Chittum of the Columbia Journalism Review writes, “Prior restraint is the nuclear option in government relations with the press and unfortunately, the British don’t have a First Amendment.”

But in fact, there is nothing to stop the U.S. government from censoring the media with regard to revelations such as those contained in the Snowden files — nothing, that is, except longstanding tradition. And respect for that tradition is melting away, as I argued recently in this space.

The case for censorship, ironically, was made in a U.S. Supreme Court decision that severely limited the circumstances under which the government could censor. The decision, Near v. Minnesota (1931), was a great victory for the press, as the ruling held that Jay Near could not be prohibited from resuming publication of his scandal sheet, which had been shut down by state authorities (of course, he could be sued for libel after the fact).

What’s relevant here is how Chief Justice Charles Evans Hughes described the limited circumstances under which the government could engage in prior restraint:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.

The text I’ve bolded means that the government may, in fact, engage in censorship if by so doing it would prevent a breach of national security so grave that it could be likened to the examples cited by Hughes. That’s what the Nixon administration relied on in seeking to stop The New York Times and The Washington Post from publishing the Pentagon Papers in 1971.

The Supreme Court, in allowing publication of the Pentagon Papers to resume (New York Times Co. v. United States), wrestled extensively with Near v. Minnesota, and ultimately decided that revealing the government’s secret history of the Vietnam War did not amount to the sort of immediate, serious breach of national security that Hughes envisioned.

But who knows what the court would say if the Obama administration took similar action against The Washington Post, which has published several important reports based on the Snowden documents — including last week’s Barton Gellman bombshell that the National Security Agency had violated privacy protections thousands of times?

Unlike the Pentagon Papers, the Snowden documents pertain to ongoing operations, which cuts in favor of censorship. Cutting against it, of course, is that there’s a strong public-interest case to be made in favor of publication, given the long-overdue national debate that Snowden’s revelations have ignited.

The bottom line, though, is that there is no constitutional ban that would prevent the White House from seeking to stop publication of the Snowden documents — even if U.S. officials are unlike to engage in the sort of theatrics that reportedly took place in The Guardian’s basement.

(Disclosure: I wrote a weekly online column for The Guardian from 2007 to 2011.)

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.

What “special protections” is Carr talking about?

David Carr
David Carr

There are a couple of problems with David Carr’s column in The New York Times on Glenn Greenwald and the line between journalism and activism.

First, Greenwald isn’t really a close call. He is an opinionated liberal columnist and blogger who works for a large, well-regarded news organization, The Guardian. The key: he’s independent. No advocacy group is paying his salary. If we must draw lines, Greenwald is well on the journalistic side of the divide.

What I really want to see more discussion of, though, is Carr’s assertion that “when it comes to divulging national secrets, the law grants journalists special protections that are afforded to no one else.” What is Carr talking about?

As I explained recently, the Espionage Act, under which Edward Snowden has been charged in the National Security Agency leaks, makes no distinction between leaking classified information and publishing classified information.

The question of whether to prosecute news organizations came up after the Pentagon Papers and again after the revelation of the Bush administration’s illegal wiretapping program. U.S. Rep. Peter King, R-N.Y., has called for journalists to be prosecuted over the Snowden leaks.

Yes, there are limited protections for journalists trying to shield their sources in 49 states. But I don’t think that’s what Carr was referring to. In any case, there are no shield protections at the federal level.

So help me out here. What do you think Carr has in mind?

An innuendo-laden attack on Greenwald

Edward Jay Epstein has written an innuendo-laden column for The Wall Street Journal in which he strongly insinuates that filmmaker Laura Poitras and/or journalist/blogger/lawyer Glenn Greenwald of The Guardian criminally assisted Edward Snowden in leaking National Security Agency documents.

Epstein’s toxic brew of archly worded questions leads to the inescapable conclusion that he believes the two journalists ought to be investigated and possibly charged under the World War I-era Espionage Act.

Josh Stearns, who serves with Greenwald on the Freedom of the Press Foundation board, has some thoughts about journalism and the Espionage Act. He writes:

The First Amendment and press freedom questions that haunt the Espionage Act are particularly important right now. Changes in media and technology have put the tools of journalism and media making in the hands of more and more people, challenging old assumptions about who is a journalist and how journalism is done. Increasingly, independent journalists, nonprofit news outlets and citizens are playing critical roles in newsgathering and reporting on the most important issues of our time.

I don’t think Stearns gives sufficient weight to the idea that merely publishing leaked documents is, in fact, a violation of the law, and that investigative journalism depends on the hopeful notion that the government won’t use its authority. Otherwise, though, it’s a useful guide to the issues at stake.

More: Greenwald responds to the Epstein column in this Storify involving (mainly) Jeff Jarvis and Michael Wolff.