WASHINGTON — As governments throughout the world try invasive methods to penetrate newsroom secrets, top journalists use no-tech methods: meeting sources outside microphone range, avoiding phone and email messages and keeping pencil — not electronic — notes.
“We’re going back to old-time shoe leather reporting,” said New York Times national security correspondent David Sanger. “We try not to leave a trace — with no electronic footprint.”
But he told a “Journalism After Snowden” conference at the Newseum last Thursday that while journalists can protect their own data and sources, they can’t control what hackers can do to intercept their electronic communications.
In that case Times reporter James Risen fought a seven-year battle to protect confidential sources, but the government helped make its case by producing phone calls and email contacts between Risen and Sterling.
Times executive editor Dean Baquet and his Washington Post counterpart, Marty Baron, said they decide officials’ requests to withhold national security information on a case-by-case basis.
They said they won’t surprise officials by publishing potentially dangerous information but will give them a chance to make their case against publishing.
Baquet will hear them out and push them hard for specifics about how publication can harm national security. He said they have to prove that printing risks “life and limb.”
Baron said, “We don’t publish sources and methods. We try to balance national security concerns with the public interest. It comes down to our judgment.”
Both editors said the press should do more, not less, probing of national security issues.
Baquet sees more secrecy in national security than ever, saying for example that it’s “stunning” how little we know about drone warfare. “It’s an undeclared, undiscussed and uncovered issue around the world.”
Bill Kirtz is an associate professor of journalism at Northeastern University.
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.
Last January, not long after the young Internet genius Aaron Swartz committed suicide, civil-liberties lawyer Harvey Silverglate wrote powerfully about the abusive prosecutorial tactics that may have led to his death.
Swartz faced a lengthy federal prison sentence for downloading academic articles at MIT without authorization. Even though the publisher, JSTOR, declined to press charges, U.S. Attorney Carmen Ortiz brought a case agains Swartz under the Computer Fraud and Abuse Act. As Silverglate put it, the law is “a notoriously broad statute enacted by Congress seemingly to criminalize any use of a computer to do something that could be deemed bad.”
Silverglate’s article was republished in Media Nation with the permission of Massachusetts Lawyers Weekly, where it originally appeared. And it was far and away the most viewed article in Media Nation in 2013.
Today we present Media Nation’s top 10 posts for 2013, based on statistics compiled by WordPress.com. They represent a range of topics — from the vicissitudes of talk radio to a media conflict of interest, from Rolling Stone’s controversial cover image of accused Boston Marathon bomber Dzhokhar Tsarnaev to the sad, sudden death of The Boston Phoenix.
The top 10 is by no means representative of the year in media. Certainly the biggest story about journalism in 2013 involved the National Security Agency secrets revealed by Edward Snowden to The Guardian and The Washington Post — a story that did not make the cut at Media Nation.
Here, then, is our unrepresentative sample for the past 12 months.
2. The New Republic’s new owner crosses a line (Jan. 28). A little more than a year ago, the venerable New Republic was saved by Chris Hughes, a co-founder of Facebook who is using some of his fortune to restore the magazine to relevance and fiscal health. But he crossed an ethical line last January when he took part in an interview with President Obama, whose campaign he had worked on, and tossed a series of softball questions his way. At the time I wrote that Hughes was guilty of “no more than a minor misstep.” So how did it rise to No. 2? It turns out that a number of right-leaning websites picked up on it, bringing a considerable amount of traffic to Media Nation that I normally don’t receive.
3. Dailies go wild over sports controversies (Aug. 30). Four months after publishing this item, I find it hard to make heads or tails of what was going on. But essentially Globe-turned-Herald sportswriter Ron Borges contributed to a Rolling Stone article on the Aaron Hernandez murder case, which generated some tough criticism from both the Globe and the well-known blog Boston Sports Media Watch. That was followed almost immediately by a Globe article on the ratings collapse of sports radio station WEEI (AM 850), which brought yet more tough talk from, among others, ’EEI morning co-host Gerry Callahan, who also happens to write a column for the Herald. Yes, Boston is a small town.
4. Rolling Stone’s controversial cover (July 17). I thought it was brilliant. I still do. The accusion that Rolling Stone was trying to turn Dzhokhar Tsarnaev into some sort of pop-culture hero is absurd and offensive — and not borne out by the well-reported article that the cover was designed to illustrate.
5. Glenn Ordway walks the ratings plank(Feb. 14). Ordway built sports talker WEEI into a ratings monster only to see its numbers crater in the face of competition from the Sports Hub (WBZ-FM, 98.5). Ordway was by no means the problem with WEEI. But station management decided it could no longer afford his $500,000 contract, and so that was it for the Big O.
6. A big moment for The Boston Globe(Dec. 17). It was actually a big year for the Globe, from its riveting coverage of the marathon bombing and the standoff that led to the arrest of Dzhokhar Tsarnaev to the paper’s acquisition by Red Sox principal owner John Henry. But two days in mid-December were emblematic of the paper’s continuing excellence and relevance — a long, detailed exposé of the Tsarnaev family that revealed Dzhokhar, rather than his older brother, Tamerlan, may have been the driving force behind the bombing; an investigation into a case of alleged “medical child abuse” that pitted a Connecticut family against Children’s Hospital; and a nationally celebrated series of tweets by staff reporter Billy Baker about a Boston teenager from a poor family who had been admitted to Yale.
7. The Boston Phoenix reaches the end of the road (March 14). A stalwart of the alternative-weekly scene and my professional home from 1991 to 2005, the Phoenix was a voice of incalculable importance. But with even the legendary Village Voice struggling to survive, the alt-weekly moment may have passed. At the time of its death, the Phoenix had more than 100,000 readers — but little revenue, as advertising had dried up and both the print edition and the website were free. I scribbled a few preliminary thoughts in this post, and later wrote something more coherent for PBS MediaShift.
8. The return of Jim Braude and Margery Eagan (Feb. 6). Eagan and Braude’s morning show was the one bright spot on WTKK Radio, an otherwise run-of-the-mill right-wing talk station that had been taken off the air a month earlier. So it was good news indeed when the pair was hired to host “Boston Public Radio” from noon to 2 p.m. on public station WGBH (89.7 FM). (Note: (I am a paid contributor to WGBH-TV’s “Beat the Press,” where Eagan is a frequent panelist.)
9. Joe Scarborough grapples with history — and loses(Feb. 17). Asking cable blowhard Scarborough to write a review for The New York Times Book Review about the relationship between Dwight Eisenhower and Richard Nixon could have been a smart, counterintuitive move. But it only works if the writer in question is, you know, smart.
10. The bell tolls for WTKK Radio (Jan. 3). As I already mentioned, Jim Braude and Margery Eagan were able to walk away from the rubble of WTKK, which was shut down by corporate owner Greater Media and turned into an urban music station. Just a few years earlier the station had been a ratings success with trash-talking hosts like Jay Severin and Michael Graham. But tastes change — sometimes for the better.
Photo (cc) by Maria Jesus V and published under a Creative Commons license. Some rights reserved.
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.
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?
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.
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.
A few, though, have pointed to a chart showing supposed hypocrisy on the part of Democrats. In January 2006, self-identified Democrats opposed the NSA’s surveillance programs by a margin of two to one. Today they support those programs by an almost identical margin.
The chart is helpfully labeled “Partisan Shifts in Views of NSA Surveillance Programs.” But what really matters is a parenthetical: “See previous table for differences in question wording.”
So I did, and you can, too. The 2006 survey, by ABC News and The Washington Post, was based on the following proposition: “NSA has been investigating people suspected of terrorist involvement by secretly listening in on phone calls & reading emails without court approval…”
This time around, Pew and the Post put it this way: “NSA has been getting secret court orders to track calls of millions of Americans to investigate terrorism…”
I added the emphasis in both instances to highlight the differences. Under George W. Bush, without court approval; under Barack Obama, with court approval. And: “listening in on phone calls” in 2006 versus “track[ing] calls” in 2013. A considerable difference, regardless of what you think of the NSA’s activities (and, for the record, I’m glad they’ve been exposed).