Upending the NSA’s illegal data sweep is a major triumph for the press, but claiming credit would mean crediting Edward Snowden

Week of May 24, 2015

The National Security Agency’s bulk capture of the phone records of millions of U.S. citizens was sweeping and invasive. Now we know it was also illegal, since a federal appeals court has said so. Meanwhile the man who exposed the program, the former NSA contractor Edward Snowden, is still a fugitive in Russia and faces charges of espionage if he returns to this country.

Snowden’s June 2013 leaks won the Pulitzer Prize for The Guardian of London and The Washington Post. Yet the U.S. news media have been slow to recognize—let alone applaud—his contribution, the single most effective and beneficial act of journalistic defiance in recent memory.

The New York Times report on the court’s May 7 ruling declaring the data collection illegal was especially circumspect, with Snowden’s name not even mentioned until paragraph 29. (The Guardian, on the other hand, put him in the headline.)

There would’ve been no legal challenge if not for Snowden. Nor would the House of Representatives ever have voted decisively to halt the program, since Congress wouldn’t even have known about it.

The fate of the program is still the subject of mud-wrestling on Capitol Hill, but there’s no question that Snowden’s impact has been historic. It’s hard to recall a comparable instance where media disclosures produced such a dramatic shift in public attitudes and such a repudiation of official policy.

Press histories extol the Pentagon Papers case, where The New York Times resisted White House pressure and published a secret history of Vietnam-era bungling and deceit. But the war went on for three more years, unimpeded by Continue reading

Overlooked Miami Beach police shooting exposes legal system’s limp response to needless killing

Raymond Hérisse never made it to his hangover. It was waiting for him, the sour remnant of all the Hennessy he’d been imbibing early the morning of May 30, 2011. But he was still drunk that Memorial Day when he was shot to death at the wheel of his borrowed Hyundai Sonata by 12 police officers in Miami Beach, Fla. He was hit 16 times; later, investigators recovered 124 spent rounds.

Hérisse was 22. It was Urban Beach Weekend, an annual bacchanal that draws to the seaside town a huge outpouring of largely black, largely young, revelers from throughout South Florida. Hérisse was visiting from his home 60-some miles up the coast in Boynton Beach. In the minutes before he died he had been driving his friend’s car foolishly and dangerously along the city’s main thoroughfare Collins Avenue, two blocks from the ocean, careening off several other cars, swerving onto the wrong side of the street and even onto the sidewalk, sending pedestrians and bicycle-riding police scurrying for safety—and drawing gunfire from eight cops as his Sonata rolled along.

Finally the car stopped at 13th Street. It’s not known whether Hérisse had been hit by any of the 44 bullets already fired at the car. The Sonata remained motionless for over a minute; through the tinted windows witnesses thought Hérisse was moving. Maybe he was reaching for a gun. When he didn’t respond to police screaming at him to get out, they started shooting again—eight of them, popping away with their Glocks and Sig Sauers, 81 more rounds for investigators to pick up and count.

By the time it was over a total of 12 officers from three different forces enlisted to handle the weekend crowds had fired on Raymond Hérisse. They hit four bystanders, wounding them severely, and they killed Hérisse.

The affair got a bit of notoriety at the time after police seized and destroyed the smartphone of one of several onlookers who had the presence of mind to record the fusillade. He managed to get his video to CNN only by hiding the memory card in his mouth. So for a moment the incident became a press freedom issue.

As it happens, I was asleep about 10 blocks away at the time of the shooting, and as the facts trickled in was appalled by what seemed to be the grotesque and murderous disproportionality of the police response. What was going on? Why did it take three days for police to announce they’d found a gun in the car, which it turned out was under a seat, wrapped in a shirt, untouched? And in a city that had been convulsed repeatedly in the ‘80s and ‘90s by racial violence triggered by lethal predation by police, would there be any reckoning?

It took local authorities nearly four years to come up with a determination as to whether anybody, apart from Raymond Hérisse, did anything wrong that pre-dawn morning. Finally on March 16, the Miami-Dade State Attorney’s Office released its findings, which cleared police of any criminal wrongdoing (the civil Continue reading

It’s OK now for someone to shoot photos of you through your apartment window? NY court leaves a dark picture of privacy imperiled

When the first court ruling came down in 2013, this came down, with signature restraint, from The New York Post: “Judge backs the right of creepy Tribeca artist to photograph people through their windows.” Two weeks ago an appeals court upheld that decision, and The Hollywood Reporter announced: “Artist who spied on neighbors with telephoto lens beats privacy claims.”

Welcome to the affair of Arne Svenson, a fine arts photographer of considerable skill. He spent a year using a 500mm telephoto lens he got from a birdwatching friend to shoot thousands of pictures of his unwitting neighbors through the windows of their plush apartments across the street from his in Lower Manhattan. When some of Svenson’s photos were offered for sale at a high-end New York gallery in 2013, he was sued for, among other things, invasion of privacy.

Although they’re described in some quarters as “voyeuristic,” there’s nothing salacious about his pictures. They’re tasteful, and they’re cool. They’re photos of legs and of dogs, of reclining figures, of shadows and profiles, of children shot from behind, of blurred couples interacting and, perhaps, arguing. By and large, you can’t tell who the people are, and that anonymity, it’s suggested, universalizes the images. They’re framed by the crisp lines of their living-room windows, and the results look very much like art.

“I find the unrehearsed, unconscious aspects of life the most beautiful to photograph, as they are most open to interpretation, to a narrative,” Svenson said in 2013. “A dramatic moment has the single power of action, but tiny, linked moments are how we mark time on this earth. I am much more interested in recording the breath between words than I am the actual words themselves.”

So? How much of that matters? Here those people are, inhabiting “the breath between words,” tending to household pleasures, fussing or napping, scolding their kids, eating their prunes or flirting with their mates or scratching their butts, and some faceless guy across the way using some mid-tech peephole captures these images—and decides how much of what’s captured should be shared with (and peddled to) a vast audience of strangers. Don’t expectations of privacy matter? Does artistic flutter trump personal sanctuary?

The New York courts, applying a century-old law intended to keep an individual’s likeness from being used in advertisements without consent, decided that state privacy protections had to yield to Svenson’s expressive freedom under the First Amendment. That’s because a huge “newsworthy and public concern exemption” to privacy safeguards had been carved out, and although there’s nothing remotely newsworthy about Svenson’s images, it applies to literature, movies and works of art as well.

Now, newspeople are used to basing their right to ignore primordial privacy claims on such matters as where the photographer is shooting the picture from (a sidewalk, e.g.) or where the figures being shot are standing (if they’re in a Continue reading

British daily’s campaign to prevent climate change raises bold questions about role of press advocacy

The Guardian, the London daily that has risen from a respected but fringe player on the British political scene to a major transatlantic voice of liberal thought, did something notable and gutsy a few weeks ago, and just about nobody on this side of the ocean paid any attention.

Flanked by stories and commentaries, Alan Rusbridger, the editor credited with leading the Guardian’s rise, announced March 6 that his organization was launching a campaign intended to head off the climate catastrophe that the scientific consensus has concluded is unavoidable without deep changes in public policy and industrial practice.

The Guardian’s objective is to slow the production of fossil fuels by pressing to halt the exploitation of new energy reserves. The world has much more coal, oil and gas in the earth than it can safely burn. “Leave it in the ground,” is the rallying cry.

The immediate goal is to encourage investors to dump their holdings in fossil fuel-based companies, on grounds that pulling money out would slow the use of suicidal fuels and goad the energy giants into investing in environmentally palatable power sources. As a first step, the Guardian would lead a drive to persuade two immensely rich—and by reputation, socially responsible—foundations, UK’s Wellcome and the U.S.-based Gates, to unload the $1.5-plus billion worth of energy shares they own.

The Guardian was allying with an organization called 350.org, associated with the influential U.S. environmentalist Bill McKibben. It takes its name from the prediction that unless the concentration of carbon dioxide in the atmosphere is cut from its current 400 parts per million (ppm) to 350, we’re all in very big trouble.

In a personal note, Rusbridger explained that as he looked back on his two decades as The Guardian’s editorial chief—he retires this summer—his greatest regret was “that we had not done justice to this huge, overshadowing, overwhelming issue of how climate change will probably, within the lifetime of our children, cause untold havoc and stress to our species.”

Now I’m a big fan of the Guardian, and I’ve watched its ascent under Rusbridger with admiration. It stood shoulder-to-shoulder with the world’s top news organizations in the Wikileaks stories and in the publication of the Edward Snowden leaks, for which it shared a Pulitzer, and I applauded.

And I was moved by Rusbridger’s epiphany that, for all the fights he’s fought and won, none will matter 20 or 30 years from now if climate science is right, and we have lost it all.

So I don’t wonder why Rusbridger took this move, but I do wonder why it has gone unnoticed. I’ve poked around online and can find almost no mention of this campaign—to which The Guardian devoted lavish space, solid reporting, and gorgeous graphics—in the U.S. media. It’s as if, to borrow an English image, the quirky matriarch had now become the batty old aunt in the attic. Continue reading

While newscasters’ storytelling sparks outrage, the official lies that justified torture go unpunished

The zeal with which TV news stars Brian Williams of NBC and Bill O’Reilly of Fox have been lambasted and ridiculed for burnishing their tales of bravery in the field would be heartening if it signaled a thoroughgoing insistence that people in the public eye tell the truth. But when you appraise the current state of truth-telling through a wider lens, you have to wonder whether any consistent standards of honesty are being applied.

Case in point: For the past few weeks I’ve been making my way through the Senate committee report released in December that chronicles one of the darkest episodes of U.S. official misconduct in recent years. In it, a succession of government operatives—acting out of vindictiveness, ineptitude, fear, arrogance and lockstep obedience—inflicted cruel and lawless punishment on individuals suspected, wrongly in some cases, of being connected to terrorist threats against this country.

This was the CIA detention program, which between late 2001 and 2007 featured what the agency still calls “enhanced interrogation techniques,” and which any conscious human over the age of five understands was torture.

Let’s be clear here: The techniques included sleep deprivation of up to 180 hours, which triggered hallucinations and “attempts at self-harm and self-mutilation;” diapering prisoners and denying them access to toilets; “rectal rehydration” and “rectal feeding,” in which detainees were essentially sodomized; ice water baths, beatings, water dousing, forced nudity, abdominal slaps, “dietary manipulation” (being denied food for up to two days), threats to family members, suspension by handcuffs from overhead bars for up to 22 hours; being shackled and isolated in complete darkness in unheated cells, inducing hypothermia (and in one case, death); and waterboarding, or near-drowning.

What’s immediately striking about the Senate report is, first and foremost, the persuasive evidence that these horrors did us not a lick of good and made us no safer. Those are conclusions investigators reached by examining with apparent precision what the interrogators and their handlers said they learned and comparing that with what was already known, with what they’d learned by questioning the suspects without torturing them, and with what turned out to be the truth.

Time and again, investigators found that the tortured prisoners told them nothing they didn’t previously know; had already fully disclosed everything they knew before they were tortured; fabricated what they thought their tormentors wanted to hear; or didn’t actually know anything because they were wrongly accused in the first place.

That’s not what the jailers and their handlers claimed, however. The report details instance after instance of the people who were running this torture program again and again misrepresenting its extent, the precise horrors they were inflicting, the precautions they were taking, and above all, the effectiveness of the measures. They repeatedly ignored or willfully distorted the records their own operatives were keeping of the grotesque and nightmarish interrogations and the aftermaths.

According to the Senate report, they lied to their bosses in the White House. They lied to their overseers in Congress. They lied to the media, and they lied to the public. They claimed that torture unearthed information that couldn’t be obtained in any other way, and that it thwarted real plots and saved lives. And in every case, under close examination the Senate investigators determined those Continue reading

SIS video of the Jordanian pilot’s immolation is disturbing testimony to the media skills of a vicious movement

Revulsion over the video made by ISIS of the savage execution of a captured Jordanian pilot has eclipsed a reality that’s even more remarkable than the barbarism the film celebrates: That it’s an intensely crafted piece of video, the work of people with a sophisticated understanding of the power of visual propaganda and a keen grasp of the uses to which advanced media can be bent in advancing their cause and winning new followers.

The video is no mere snuff film. It’s nothing like the grainy, almost pornographic movies that ISIS—the so-called Islamic State in Iraq and Syria—made last year of the beheadings of journalists and aid workers.

This is in a whole different league cinematically—a 22-minute morality play constructed almost like a trial, woven from film, animation and informational graphics, and given a texture, a pace, and a narrative coherence that’s shrewdly crafted, chilling, and thoroughly contemporary.

In it, the Jordanian pilot, 26-year-old Lt. Moaz al-Kasasbeh, is portrayed as a tool of a multinational cabal united against ISIS. He is linked visually to the destruction of civilian targets and the horrific deaths of children, who are repeatedly shown burnt and mangled.

Kasasbeh is made to face, literally, buildings on a deserted city street that were shattered by the air war he waged. And finally he’s put to death in a harrowing Continue reading

Ex-CIA agent’s conviction reminds us that whistle-blowing remains thankless and perilous, despite assurances of protection

So Jeffrey Sterling, a former U.S. intelligence officer, has finally been found guilty of espionage for leaking details of “what may have been one of the most reckless operations in the modern history of the CIA,” as James Risen, the journalist Sterling was convicted of informing, put it.

The news media wasted little time lamenting Sterling’s Jan. 26 conviction, since their main concern had been with whether Risen, a national security reporter for The New York Times, would be jailed for refusing to say whether Sterling was his source.

After hounding Risen for seven years, the Justice Department had backed off its demand that he inform on his alleged informant, and prosecutors got their conviction anyway. That’s fairly outrageous in itself, since the department’s guidelines had long stipulated that reporters shouldn’t be muscled unless, among other things, there’s no other way to get the evidence prosecutors need, which plainly wasn’t true here.

A pointless verdict to avenge a stale embarrassment —a conviction in 2015 stemming from a 2006 book about a foolish operation that blew up in the CIA’s face in 2000. The spymasters, Risen recounted in State of War, had infiltrated a recipe for nuclear weaponry into Iran that was so transparently flawed that it was immediately detected and which still may have ended up advancing Iran’s nuclear program.

By 2006, when Risen’s book came out, the secrets had long ago ceased to be secret from the people they were supposed to be secret from.

It should be obvious that if Sterling’s leaks had told of unsung heroism and brilliance within the agency, there’d have been no prosecution, even if the information had been no less secret. But he committed the mortal sin of humiliating his bosses, and for that he’ll pay.

Still, the idea that whistle-blowers don’t really have to go public to expose government stupidity is a recurring element in the criticisms leveled at Jeffrey Sterling and other well-placed leakers, such as Chelsea Manning, the Wikileaks uber-source, and Edward Snowden, the former National Security Agency (NSA) operative now a fugitive in, of all places, Russia.

President Obama in 2013 noted that he had approved whistle-blower protection for national security workers. That’s why Snowden had no reason to go to the media with his explosive information about NSA domestic surveillance. “So there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions,” the president said.

The idea that whistle-blowers are protected is often voiced, and may sometimes even be true.

But a chilling story that Risen tells in his 2014 book, Pay Any Price, gives a depressingly different account about how warmly whistle-blowers are welcomed inside the Beltway.

Diane Roark was a career civil servant and had spent 16 years on the staff of the House Select Committee on Intelligence when, after 9/11, she was approached by a disaffected senior-level technical manager for the NSA. He told her the agency had apparently launched a domestic, warrantless wiretapping program that, she realized, was illegal and unconstitutional.

The details of the program—which was eventually exposed in December 2005 by Risen and fellow Times reporter Eric Lichtblau—matter less than the lengths Roark went through to alert authorities to what she initially thought had to be “a rogue operation.”

It’s an infuriating chronicle that unfolded over nearly five years. Roark started by approaching her bosses, the senior Intelligence Committee staffers from both Continue reading