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

Edward Snowden deserves a stronger defense than the media are offering

The news media’s silence while some of their boldest sources are prosecuted or jailed is something I’ve been protesting for some time, so naturally I was pleased when The New York Times, in an eloquent editorial on New Year’s Day, urged the White House to show leniency toward Edward Snowden, the former contract worker for the National Security Agency, whose leaks continue to expose the NSA’s monumental, intrusive and illegal monitoring of civilian communications here and abroad.

The Times recounted the broad impact of Snowden’s defiance, including widespread outrage, critical court rulings, internal investigations and even a grudging nod from the White House. President Obama nonetheless invited him to return from asylum in Russia to face whatever justice the administration is currently offering, the president apparently hoping that Snowden wasn’t paying attention when fellow whistleblower Chelsea (formerly Bradley) Manning, having shared similarly dirty laundry via Wikileaks, was manhandled and held in solitary for nearly a year and finally sentenced to 35 years by a military tribunal.

Who could turn that down?

The Times argued that Snowden deserves either clemency or some minimum-punishment plea bargain, and concluded: “When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government.”

Now, The Times never said much on Manning’s behalf. Nor has it opined in favor of Manning’s helper, Julian Assange, the Wikileaks founder who’s languishing in an ersatz house arrest in the Ecuadorean embassy in London.

For his part Assange is ignored, when he’s not reviled, by the same news organizations he fed truthful and explosive information. The received wisdom among elite media, near as I can tell, is that he’s a weirdo and an egomaniac and therefore earned his current captivity, ensured by a months-long police siege outside the embassy in Knightsbridge that’s supposedly intended to get him to return to Sweden to answer allegations of sexual misconduct, murky stuff with which he has never been charged.

The police response is grossly disproportionate and reflects far more serious concerns than a busted condom, but the media prefer to look the other way.

So amid this practice of source abandonment, The Times’ plea is welcome.

But in several regards, the pro-Snowden case is troubling. It doesn’t go nearly far enough toward ensuring a fair shake for whistle-blowers with vital stories to tell.

First, the idea that Snowden should get a break because his “disclosures have Continue reading “Edward Snowden deserves a stronger defense than the media are offering”

Will the Snowden affair lead to the Internet’s breakup?

President Obama might as well have had on his Nobel laureate coat and tails back in August. That’s when he weighed in on the revelations from fugitive intelligence analyst Edward Snowden that had ignited a worldwide furor over the vast reach of previously undisclosed U.S. electronic snooping.

The moment was reminiscent of Obama’s 2009 Nobel Peace Prize. That too invited him to muster a wisdom and statesmanship he seemed to possess but had never demonstrated.

Opinions differ as to how much peace Obama has made since then, but his Snowden comments Aug. 9 were auspicious. Acknowledging public outrage, he said he was stepping up oversight of the National Security Agency, and noted it was Snowden’s “repeated leaks of classified information” that “initiated the debate,” albeit “in a passionate but not always fully informed way.”

Obama added that “there’s no doubt that Mr. Snowden’s leaks triggered a much more rapid and passionate response than would have been the case…”

Unfortunately, that pretty much ended Obama’s statesmanship when it came to the conversation he credits Snowden with starting. Since then, Obama has been focused on trying to jail the guy who started it.

The Justice Department has charged Snowden with espionage, and he has taken refuge in that haven of expressive freedom and governmental restraint, Russia. This fact is itself no small embarrassment to those of us who thought this was the place you came to escape governmental wrath and overreach.

Abroad, Snowden has emerged as a hero in some quarters—ironically, an as archetypal American hero, the lone individualist who follows his conscience and defies officialdom in dogged pursuit of a larger good. Opinion leaders in Germany—where people are miffed that the NSA tapped the cell phone of their current chancellor, Angela Merkel, for more than a decade—have demanded he be given asylum there.

Over here, the possibility that Snowden might be anything but a traitor is barely breathed. The question of clemency was raised, briefly, the other day during the Sunday talk shows, and was swatted away instantly by the two congressional leaders on hand, backed up soon after by a White House spokesman.

The U.S. media, for their part, remain hunkered in the crouch they’ve assumed since the flood of Internet-era leaks began in 2010—a posture neck-deep in hypocrisy, with editorialists declaiming the great public value of the leaks, while keeping silent when their government imprisons the leakers.

Meanwhile, the riveting stories derived from Snowden’s NSA files continue to flow.  The realities he has exposed are immense, incomparably more significant, in my view, than the Wikileaks disclosures, for which Chelsea (formerly Bradley) Manning has been sentenced to 35 years and Wikileaks’ founder, Julian Assange, remains besieged in the Ecuadorean embassy in London.

Unlike the Wikileaks files, the Snowden material does not, by and large, consist of sensitive information the spymasters have scraped up, but instead illuminates a much more serious matter—their breathtaking capacity to scrape. That capacity, it seems, is unimaginably broad and deep, and encompasses practically all public communication systems—from phones to emails—to corporate intranets, to social media, the world’s mightiest search engines, “the cloud,” most anything digital.

The picture that emerges is of a stupendously vast surveillance system, and in the weeks and months to come, I think we’ll hear more about the most momentous potential consequence of all this: That US. spymasters have been so successful that their capability has been woven into the infrastructure of the Internet itself.

That’s the big one. And that’s the fear that is already driving Germany, India, Russia, China and the European Union to push for the United Nations to take a greater role in Internet governance, and of greater concern, is encouraging countries such as Brazil and Germany to take steps toward regionalized Internets and developing secure national email services.

Continue reading “Will the Snowden affair lead to the Internet’s breakup?”

U.S. is uniquely harsh in its panic over government secrets

By the standards of other countries, the U.S. approach to official secrecy is ferocious.

For leaking hugely newsworthy information to the press, ex-intelligence contractor Edward Snowden, who’s beseeching a score of countries for asylum, and Bradley Manning, the U.S. soldier being tried by a military court in Maryland, face charges of espionage. They could go to prison for life.

Elsewhere, punishment for making official secrets public is less severe than the penalties here for driving drunk: at worst, two years in Britain and Denmark. In other Western countries, maximum punishments range from four years in Sweden and Spain, to five in Germany, Belgium and Poland, and seven in France.

That’s according to an analysis of 20 European countries by Sandra Coliver, a legal expert with the Open Society Justice Initiative. Her group has been leading a multiyear, international effort to formulate broad principles reconciling the legitimate need to keep government secrets with the no less legitimate need to hold governments publicly accountable.

Not only are penalties mild elsewhere, Coliver found, prosecutions are rare.  In six countries, nobody in the past decade has been convicted for disclosing state secrets. In Britain, since the 1989 Official Secrets Act took effect, only 10 public employees have been prosecuted. The longest sentence was imposed on a naval petty officer who sold intelligence to a newspaper about a possible Iraqi anthrax attack. He got a year.

In fact, apart from the United States, the only country where prosecutions are common is Russia. There, 10 government employees have been imprisoned in the past decade for from four to 15 years for disclosing government information publicly.

Europe’s courts seem to be moving toward support for whistleblowers, even when state security is breached.

In a 1996 case, a military intelligence official in Romania was initially sentenced to two years for releasing the tapes of illicit wiretaps his agency had made of journalists and politicians.

But the European Court of Human Rights ruled that he was wrongly convicted, Continue reading “U.S. is uniquely harsh in its panic over government secrets”

Shouldn’t the news media fret over criminalizing the flow of important information?

In recent weeks, the gleaming Digital Age has been flipped over, exposing a dank underbelly of post-9/11 secrecy and surveillance reminiscent of a mid-20th Century police state, and implicating not just government but Silicon Valley too in harvesting and misusing information.

I’m curious about where the news media fit into all this. After all, in our political culture the news media have responsibilities that go well beyond reporting the news.

They historically have played much broader civic roles in the realm of information—as advocate of expressive liberties, servant of the public’s need to be well informed, skeptic when the powerful use secrecy against accountability, protector of the rights of the powerless who don’t want information about themselves looted.

Are the media playing such lofty roles now? That depends. Sometimes they sound like First Amendment zealots:

In May, when the Associated Press learned the government had secretly seized records from more than 20 phone lines used by reporters, AP chief Gary Pruitt denounced the action as “a serious interference with AP’s constitutional rights… ”

That same month, when a Fox News reporter was targeted as a possible “co-conspirator” with a former source—an ex-State Department contractor charged with leaking government fears about North Korean nuclear plans—Fox boss Roger Ailes deplored “a climate of press intimidation, unseen since the McCarthy era…”

Chagrined, the White House dusted off its 2009 press shield bill, which would provide some cover for journalists to defy pressure to identify confidential sources, and indicated the time might be right to pass it.

In those cases, the lines seemed clear, with the press firmly on the side of ferreting out the news and publishing it, championing informational liberty.

But elsewhere little is clear. Whose side are the news media really on when it comes to demanding a reasonably unfettered flow of publicly significant information?

The absence of sustained coverage of the half-dozen felony prosecutions of news Continue reading “Shouldn’t the news media fret over criminalizing the flow of important information?”