New York Times – Page 25

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.)

Branzburg v. Hayes v. The New York Times

You may not like a federal appeals court’s decision that New York Times reporter James Risen must testify in a CIA leak case. I don’t. But it’s Branzburg v. Hayes, straight up. It’s unimaginable that this would have gone the other way.

And keep in mind that even if we had a federal shield law, there would almost certainly be a national-security exception wide enough to drive a truckload of subpoenas through.

Some thoughts on that Rolling Stone cover (II)

Front page of the Sunday New York Times, May 5. Same picture of Dzhokhar Tsarnaev, page one, above the fold. Here is the story. Does anyone really want to argue that what the Times did is somehow different from what Rolling Stone did?

Also, a very smart commentary in The New Yorker by Ian Crouch.

Globe, Times need to correct online corrections

The Boston Globe published two corrections today. No big deal. It’s one of the ways that responsible news organizations hold themselves accountable.

But unless you read the print edition, you didn’t see the corrections — not even in the “Today’s Paper” view, which is supposed to include every item published in that day’s Globe. (Of course, corrections do appear in the ePaper, which is how I grabbed the image accompanying this post. But that’s just a PDF of the print edition.)

As someone who reads the Globe and The New York Times every day, I find myself scratching my head at how poorly the two papers handle corrections online. The Globe is worse, but the Times needs to improve, too.

The Times, at least, runs all corrections on its website and in the “Today’s Paper” section of its iPad-only HTML5 app. But they are missing from the iOS apps for the iPhone and the iPad, which are used by many of their customers. They’re also missing from Times Skimmer, an alternative desktop view based on the same feeds as the iOS apps. (I’m guessing the situation is the same with the Times’ Android apps.)

Unlike the Times, the Globe doesn’t run a separate section of online corrections anywhere — not on its website and not on its recently released iPhone app. When I posted a question on Twitter yesterday, Globe tech guy Damon Kiesow directed me to this. But it hasn’t been updated since April 4. In a follow-up, Kiesow indicated it would be fixed at some point.

I should note that both the Times and the Globe append corrections to online stories as necessary. That’s essential for archival purposes. But it doesn’t help if you read a story just once, on the day it’s published.

In any event, it’s long past time for both papers — and all papers — to take corrections as seriously in the digital space as they do in print.

More: Not long after this item was posted, New York Times public editor Margaret Sullivan tweeted:

Thoughtful piece by @dankennedy_nu on how online corrections should be handled: http://t.co/9XMNgNvCn7

— Margaret Sullivan (@Sulliview) July 11, 2013

Also, in the comments I’ve posted an email from Globe spokeswoman Ellen Clegg, who says my post “mischaracterizes” the Globe’s correction policy. I don’t think that’s the case, but I’m happy to offer a different perspective.

Edward Snowden and the peril facing journalism

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.

AP probe should be a wake-up call for journalists

By 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.

Casting some doubt on the official marathon accounts

Boston Marathon bombing memorial at the Boston Common Gazebo

For the police — and for the public — last Friday was a day of fear, rage and confusion. So it takes nothing away from the work done by law-enforcement officials to point out that things didn’t go down exactly the way they were described in real time.

Three big stories today underscore that confusion. The most significant is in the Washington Post, which reports that Dzhokhar Tsarnaev was probably unarmed when police fired on the boat in Watertown where he was hiding. They quote an anonymous official as saying that an officer may have accidentally fired his gun, setting off a fusillade.

Such a “fog of war” situation, as the Post describes it, is totally understandable. And yet, if authorities lost a chance to bring in a high-value terrorism suspect alive for questioning, it would have been a serious loss.

In the Boston Globe, a team of reporters quotes law enforcement as saying that it is now believed Tsarnaev’s neck wound came from flying shrapnel rather than a self-inflicted bullet wound, which fits in with the emerging theory that he was unarmed.

And from the New York Times we learn that the boat was actually inside the search perimeter, contradicting earlier reports. Again, not to second-guess the police, but it makes you wonder what sort of search they conducted during all those hours on Friday.

Journalists should approach the official account with skepticism, not cynicism. We need to know exactly what happened last week — including, of course, whether the Boston Marathon bombings can be attributed to a breakdown in intelligence-sharing among the CIA, the FBI, the Department of Homeland Security and other agencies, which is the main focus of the Globe article.

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

Goldsmith awards reflect the changing media landscape

I recently had the privilege of helping to judge more than 100 entries for the 2013 Goldsmith Prize for Investigative Reporting, which is administered by Harvard’s Joan Shorenstein Center. We chose six finalists, which were announced immediately, and a winner, which will be honored on Tuesday evening.

At a time when news organizations are struggling to survive, it was heartening to see so much good work. But the finalists also show how the world of investigative journalism is changing.

For instance, two of the newspapers that made it to the finalists’ circle, the Los Angeles Times and the Chicago Tribune, are owned by the troubled Tribune Co., which recently came out of bankruptcy and is now up for sale. If Tribune Co. ends up with the wrong owner, investigative excellence at its newspapers could become a thing of the past.

On the other hand, another finalist was produced by a collabortion among nonprofit news organizations: the Center for Public Integrity, Global Integrity, Public Radio International and the Investigative News Network. This is no longer surprising. Rather, it is further evidence that nonprofits are essential to carrying out public-service journalism.

Further evidence of the way things are in 2013: two of the finalists were produced by the New York Times, which, despite financial problems of its own, is more firmly established today as our leading news organization than perhaps at any other time in our history.

The sixth finalist is from the Atlanta Journal-Constitution, a Cox paper that has been experiencing something of a revival in recent years.

The finalists’ entries themselves run the gamut, from sexual abuse in Boy Scout troops, to Walmart’s corporate misbehavior in Mexico, to how the chemical and tobacco industries conspired to foist toxic flame retardants upon the public.

In addition to the investigative reporting award, also to be presented on Tuesday will be the Career Award for Excellence in Journalism, which will go to keynote speaker Nicholas Kristof, a columnist for the New York Times. The Goldsmith Book Prize will go to Jonathan M. Ladd for “Why Americans Hate the Media and How it Matters” and Rebecca MacKinnon for “Consent of the Networked: The Worldwide Struggle for Internet Freedom.”

The event, which is open to the public, will begin at 6 p.m. in the John F. Kennedy Jr. Forum at 79 JFK St. near Harvard Square.

Brian McGrory wants to restrict free Globe content

Recently I reported for the Nieman Journalism Lab that The Boston Globe was tightening up on social sharing and on how much Globe content it offers on its free Boston.com site. Today Andrew Beaujon of Poynter.org interviews Globe editor Brian McGrory, who tells him that free Globe articles will increasingly become a thing of the past.

“We’re going to start removing our in-depth Globe journalism from Boston.com, which is not a small move,” McGrory says.

The new editor describes his goal as “untangling” the paid BostonGlobe.com and the free Boston.com sites, telling Beaujon that Boston.com will feature “more social media, more community bloggers, hopefully edgier content.” Breaking news will continue to run on Boston.com, but news stories will likely be no longer than 150 words.

When Globe publisher Christopher Mayer announced in the fall of 2010 that the paper would pursue paid digital subscriptions, McGrory, then a columnist, was one of its most enthusiastic proponents (scroll down past my Q&A with Mayer).

(And by the way, we’re now up to 150 words.)

The Globe has to pay the bills, of course. I just hope McGrory and company understand how many free alternatives are out there. Even if they’re not as good as the Globe, they may prove to be good enough for those determined not to pay. An overly restrictive paywall could also trigger new competition.

I’ll make one suggestion that might help McGrory accomplish his goals while at the same time ensuring that the Globe remains part of the online conversation. The Globe’s corporate big brother, The New York Times, allows people access to 10 stories a month before the paywall kicks in.

That seems reasonable, given that anyone who wants to read the Globe regularly is going to click at least 10 times a day. I hope the Globe considers it.

Joe Scarborough doesn’t know much about history

If you’re going to try something as cheeky as letting cable blowhard Joe Scarborough review a serious book about political history, you should at least make sure you’ve got a safety net in place. But the New York Times Book Review doesn’t even bother, letting Scarborough step in it repeatedly in his review of Jeffrey Frank’s “Ike and Dick: Portrait of a Strange Political Marriage.”

You can hear the mellifluous strains of Sam Cooke in the very first two sentences:

It may be the closest of political relationships, but it rarely ends well. Vice President Thomas Jefferson challenged President John Adams for the top spot in the vicious campaign of 1800.

There are two possibilities to ponder as we consider this remarkable lead. The first is that Scarborough doesn’t realize the Constitution originally stipulated that the candidate who received the most votes from the Electoral College would become president and that the person who came in second would become vice president. Perhaps that’s too much math for the famously innumerate Scarborough.

The second possibility is that Scarborough knows but doesn’t care, because he thought it sounded good to suggest that, right from the earliest days of the republic, the partnership between the president and his number two was somehow destined to go bad.

The reality, of course, is that Adams and Jefferson were bitter rivals and ran against each other in the 1796 campaign. Adams won and Jefferson came in second, sentencing both of them to a partnership that neither wanted. The possibility of such an outcome was abolished when the 12th Amendment was ratified in 1804.

Scarborough’s more serious lapse comes in the second paragraph:

Frank, a former editor at both The New Yorker and The Washington Post, examines how Ike’s cool nature and detached management style left Richard Nixon insecure and embittered through the remainder of his political career.

Now, I haven’t read Frank’s book, so I’ll accept that Scarborough is simply reporting what Frank wrote — with a fair amount of exaggeration and oversimplification, I suspect. But really. If Frank truly believes that the notoriously neurotic, paranoid Nixon got that way because Dwight Eisenhower wasn’t nice to him, that’s revisionist history with a vengeance. It’s one thing to suggest that Eisenhower played to Nixon’s insecurities; it’s quite another to assert that he was responsible for them. For Scarborough to accept that uncritically is a failure of the first order.

Scarborough even compounds it, writing, “Like Lyndon Johnson’s after him, much of Nixon’s pathos sprang from his painful contemplation of his boss’s public slights.” Seriously? As anyone who’s read Robert Caro’s “The Passage of Power” knows, Johnson, like Nixon, suffered from a world-class case of insecurity long before he ever met John Kennedy. The truth is the opposite of what Scarborough claims: both Nixon and Johnson were uniquely unsuited to suffer the slights that are inherent to the vice presidency long before they assumed the office.

Strike three, and Scarborough is out:

A fascinating subplot in Frank’s story details Nixon’s role in pushing the administration on the issue of civil rights. Long criticized as the author of the Republican Party’s racially tinged “Southern strategy,” Nixon is shown by Frank to be a determined advocate for the Civil Rights Act of 1957, as well as a trusted ally of Martin Luther King Jr. and Jackie Robinson.

“Long criticized”? Well, yes. Here the reviewer’s obligation is to tell us how Frank traces Nixon’s devolution from a liberal on civil rights in the 1950s to a race-baiting panderer — a cleaned-up version of George Wallace — in his successful campaign for the presidency in 1968. And if Frank fails to document that devolution, Scarborough needs to say that. Instead, Scarborough leaves us with the fantasy that Nixon is a forgotten champion of civil rights who has somehow been unfairly castigated ever since.

Overall, a predictably poor performance. What was the New York Times thinking?

Photo (cc) by Mark Mathosian and published under a Creative Commons license. Some rights reserved.