I am so grateful that at least one newspaper, the Guardian in the U.K., still supports courageous investigative journalism.
June 14, 2013
Addressing many of the issues arising from last week’s NSA stories
(Updated below — Update II — Update III)
I haven’t been able to write this week here because I’ve been participating in the debate over the fallout from last week’s NSA stories, and because we are very busy working on and writing the next series of stories that will begin appearing very shortly. I did, though, want to note a few points, and particularly highlight what Democratic Rep. Loretta Sanchez said after Congress on Wednesday was given a classified briefing by NSA officials on the agency’s previously secret surveillance activities:
“What we learned in there is significantly more than what is out in the media today. … I can’t speak to what we learned in there, and I don’t know if there are other leaks, if there’s more information somewhere, if somebody else is going to step up, but I will tell you that I believe it’s the tip of the iceberg … I think it’s just broader than most people even realize, and I think that’s, in one way, what astounded most of us, too.”
The Congresswoman is absolutely right: what we have reported thus far is merely “the tip of the iceberg” of what the NSA is doing in spying on Americans and the world. She’s also right that when it comes to NSA spying, “there is significantly more than what is out in the media today”, and that’s exactly what we’re working to rectify.
But just consider what she’s saying: as a member of Congress, she had no idea how invasive and vast the NSA’s surveillance activities are. Sen. Jon Tester, who is a member of the Homeland Security Committee, said the same thing, telling MSNBC about the disclosures that “I don’t see how that compromises the security of this country whatsoever” and adding: “quite frankly, it helps people like me become aware of a situation that I wasn’t aware of before because I don’t sit on that Intelligence Committee.”
How can anyone think that it’s remotely healthy in a democracy to have the NSA building a massive spying apparatus about which even members of Congress, including Senators on the Homeland Security Committee, are totally ignorant and find “astounding” when they learn of them?
How can anyone claim with a straight face that there is robust oversight when even members of the Senate Intelligence Committee are so constrained in their ability to act that they are reduced to issuing vague, impotent warnings to the public about what they call radical “secret law” enabling domestic spying that would “stun” Americans to learn about it, but are barred to disclose what it is they’re so alarmed by?
Put another way, how can anyone contest the value and justifiability of the stories that we were able to publish as a result of Edward Snowden’s whistleblowing: stories that informed the American public — including even the US Congress — about these incredibly consequential programs? What kind of person would think that it would be preferable to remain in the dark — totally ignorant — about them?
I have a column in the Guardian’s newspaper edition tomorrow examining the fallout from these stories. That will be posted here and I won’t repeat that now. I will, though, note the following brief items:
(1) Much of US politics, and most of the pundit reaction to the NSA stories, are summarized by this one single visual from Pew:
The most vocal media critics of our NSA reporting, and the most vehement defenders of NSA surveillance, have been, by far, Democratic (especially Obama-loyal) pundits. As I’ve written many times, one of the most significant aspects of the Obama legacy has been the transformation of Democrats from pretend-opponents of the Bush War on Terror and National Security State into their biggest proponents: exactly what the CIA presciently and excitedly predicted in 2008 would happen with Obama’s election.
Some Democrats have tried to distinguish 2006 from 2013 by claiming that the former involved illegal spying while the latter does not. But the claim that current NSA spying is legal is dubious in the extreme: the Obama DOJ has repeatedly thwarted efforts by the ACLU, EFF and others to obtain judicial rulings on their legality and constitutionality by invoking procedural claims of secrecy, immunity and standing. If Democrats are so sure these spying programs are legal, why has the Obama DOJ been so eager to block courts from adjudicating that question?
More to the point, Democratic critiques of Bush’s spying were about more than just legality. I know that because I actively participated in the campaign to amplify those critiques. Indeed, by 2006, most of Bush’s spying programs — definitely his bulk collection of phone records — were already being conducted under the supervision and with the blessing of the FISA court. Moreover, leading members of Congress — including Nancy Pelosi — were repeatedly briefed on all aspects of Bush’s NSA spying program. So the distinctions Democrats are seeking to draw are mostly illusory.
To see how that this is so, just listen to then-Senator Joe Biden in 2006 attack the NSA for collecting phone records: he does criticize the program for lacking FISA court supervision (which wasn’t actually true), but also claims to be alarmed by just how invasive and privacy-destroying that sort of bulk record collection is. He says he “doesn’t think” that the program passes the Fourth Amendment test: how can Bush’s bulk record collection program be unconstitutional while Obama’s program is constitutional? But Biden also rejected Bush’s defense (exactly the argument Obama is making now) — that “we’re not listening to the phone calls, we’re just looking for patterns” — by saying this:
“I don’t have to listen to your phone calls to know what you’re doing. If I know every single phone call you made, I’m able to determine every single person you talked to. I can get a pattern about your life that is very, very intrusive. … If it’s true that 200 million Americans’ phone calls were monitored — in terms of not listening to what they said, but to whom they spoke and who spoke to them — I don’t know, the Congress should investigative this.”
Is collecting everyone’s phone records not “very intrusive” when Democrats are doing it? Just listen to that short segment to see how every defense Obama defenders are making now were the ones Bush defenders made back then. Again, leading members of Congress and the FISA court were both briefed on and participants in the Bush telephone record collection program as well, yet Joe Biden and most Democrats found those programs very alarming and “very intrusive” back then.
(2) Notwithstanding the partisan-driven Democratic support for these programs, and notwithstanding the sustained demonization campaign aimed at Edward Snowden from official Washington, polling data, though mixed, has thus far been surprisingly encouraging.
A Time Magazine poll found that 54% of Americans believe Snowden did “a good thing,” while only 30% disagreed. That approval rating is higher than the one enjoyed by both Congress and President Obama. While a majority think he should be nonetheless prosecuted, a plurality of young Americans, who overwhelmingly view Snowden favorably, do not even want to see him charged. Reuters found that more Americans see Snowden as a “patriot” than a “traitor.” A Gallup poll this week found that more Americans disapprove (53%) than approve (37%) of the two NSA spying programs revealed last week by the Guardian.
(3) Thomas Drake, an NSA whistleblower who was unsuccessfully prosecuted by the Obama DOJ, writes in the Guardian that as a long-time NSA official, he saw all of the same things at the NSA that Edward Snowden is now warning Americans about. Drake calls Snowden’s acts “an amazingly brave and courageous act of civil disobedience.” William Binney, the mathematician who resigned after a 30-year career as a senior NSA official in protest of post-9/11 domestic surveillance, said on Democracy Now this week that Snowden’s claims about the NSA are absolutely true.
Meanwhile, Daniel Ellsberg, writing in the Guardian, wrote that “there has not been in American history a more important leak than Edward Snowden’s release of NSA material — and that definitely includes the Pentagon Papers 40 years ago.” He added: “Snowden did what he did because he recognized the NSA’s surveillance programs for what they are: dangerous, unconstitutional activity.”
Listen to actual experts and patriots — people who have spent their careers inside the NSA and/or who risked their liberty for the good of the country — and the truth of Snowden’s claims and the justifiability of his acts become manifest.
(4) As we were about to begin publishing these NSA stories, a veteran journalist friend warned me that the tactic used by Democratic partisans would be to cling to and then endlessly harp on any alleged inaccuracy in any one of the stories we publish as a means of distracting attention away from the revelations and discrediting the entire project. That proved quite prescient, as that is exactly what they are attempting to do.
Thus far we have revealed four independent programs: the bulk collection of telephone records, the Prism program, Obama’s implementation of an aggressive foreign and domestic cyber-operations policy, and false claims by NSA officials to Congress. Every one of those articles was vetted by multiple Guardian editors and journalists — not just me. Democratic partisans have raised questions about only one of the stories — the only one that happened to be also published by the Washington Post (and presumably vetted by multiple Post editors and journalists) — in order to claim that an alleged inaccuracy in it means our journalism in general is discredited.
They are wrong. Our story was not inaccurate. The Washington Post revised parts of its article, but its reporter, Bart Gellman, stands by its core claims (“From their workstations anywhere in the world, government employees cleared for Prism access may ‘task’ the system and receive results from an Internet company without further interaction with the company’s staff”).
The Guardian has not revised any of our articles and, to my knowledge, has no intention to do so. That’s because we did not claim that the NSA document alleging direct collection from the servers was true; we reported — accurately — that the NSA document claims that the program allows direct collection from the companies’ servers. Before publishing, we went to the internet companies named in the documents and asked about these claims. When they denied it, we purposely presented the story as one of a major discrepancy between what the NSA document claims and what the internet companies claim, as the headline itself makes indisputably clear:
The NSA document says exactly what we reported. Just read it and judge for yourself (Prism is “collection directly from the servers of these US service providers”). It’s endearingly naive how some people seem to think that because government officials or corporate executives issue carefully crafted denials, this resolves the matter. Read the ACLU’s tech expert, Chris Soghoian, explain why the tech companies’ denials are far less significant and far more semantic than many are claiming.
Nor do these denials make any sense. If all the tech companies are doing under Prism is providing what they’ve always provided to the NSA, but simply doing it by a different technological means, then why would a new program be necessary at all? How can NSA officials claim that a program that does nothing more than change the means for how this data is delivered is vital in stopping terrorist threats? Why does the NSA document hail the program as one that enables new forms of collection? Why would it be “top secret” if all this was were just some new way of transmitting court-ordered data? How is Prism any different in any meaningful way from how the relationship between the companies and the NSA has always functioned?
As a follow-up to our article, the New York Times reported on extensive secret negotiations between Silicon Valley executives and NSA officials over government access to the companies’ data. It’s precisely because these arrangements are secret and murky yet incredibly significant that we published our story about these conflicting claims. They ought to be resolved in public, not in secret. The public should know exactly what access the NSA is trying to obtain to the data of these companies, and should know exactly what access these companies are providing. Self-serving, unchecked, lawyer-vetted denials by these companies don’t remotely resolve these questions.
In a Nation post yesterday, Rick Perlstein falsely accuses me of not having addressed the questions about the Prism story. I’ve done at least half-a-dozen television shows in the last week where I was asked about exactly those questions and answered fully with exactly what I’ve written here (see this appearance with Chris Hayes as just the latest example); the fact that Perlstein couldn’t be bothered to use Google doesn’t entitle him to falsely claim I haven’t addressed these questions. I have done so repeatedly, and do so here again.
I know that many Democrats want to cling to the belief that, in Perlstein’s words, “the powers that be will find it very easy to seize on this one error to discredit [my] NSA revelation, even the ones he nailed dead to rights”. Perlstein cleverly writes that “such distraction campaigns are how power does its dirtiest work” as he promotes exactly that campaign.
But that won’t happen. The documents and revelations are too powerful. The story isn’t me, or Edward Snowden, or the eagerness of Democratic partisans to defend the NSA as a means of defending President Obama, and try as they might, Democrats won’t succeed in making the story be any of those things. The story is the worldwide surveillance apparatus the NSA is constructing in the dark, and the way that has grown under Obama, and that’s where my focus is going to remain.
(5) NYU Journalism professor Jay Rosen examines complaints that my having strong, candidly acknowledged opinions on surveillance policies somehow means that the journalism I do on those issues is suspect. It is very worth reading what he has to say on this topic as it gets to the heart about several core myths about what journalism is.
(6) Last week, prior to the revelation of our source’s identity, I wrote that “ever since the Nixon administration broke into the office of Daniel Ellsberg’s psychoanalyst’s office, the tactic of the US government has been to attack and demonize whistleblowers as a means of distracting attention from their own exposed wrongdoing and destroying the credibility of the messenger so that everyone tunes out the message” and “that attempt will undoubtedly be made here.”
The predictable personality assaults on Snowden have begun in full force from official Washington and their media spokespeople. They are only going to intensify. There is nobody who political officials and their supine media class hate more than those who meaningfully dissent from their institutional orthodoxies and shine light on what they do. The hatred for such individuals is boundless.
There are two great columns on this dynamic. This one by Reuters’ Jack Shafer explores how elite Washington reveres powerful leakers that glorify political officials, but only hate marginalized and powerless leakers who discredit Washington and its institutions. And perhaps the best column yet on Snowden comes this morning from the Daily Beast’s Kirsten Powers: just please take the time to read it all, as it really conveys the political and psychological rot that is driving the attacks on him and on his very carefully vetted disclosures.
UPDATEThe New York Times reports today that Yahoo went to court in order to vehemently resist the NSA’s directive that they join the Prism program, and joined only when the court compelled it to do so. The company specifically “argued that the order violated its users’ Fourth Amendment rights against unreasonable searches and seizures.”
If, as NSA (and Silicon Valley) defenders claim, Prism is nothing more than a harmless little drop-box mechanism for delivering to the government what these companies were already providing, why would Yahoo possibly be in court so vigorously resisting it and arguing that it violates their users’ Fourth Amendment rights? Similarly, how could it possibly be said — as US government officials have — that Prism has been instrumental in stopping terrorist plots if it did not enhance the NSA’s collection capabilities? The denials from the internet companies make little sense when compared to what we know about the program. At the very least, there is ample reason to demand more disclosure and transparency about exactly what this is and what data-access arrangements they have agreed to.
UPDATE IIMy column that is appearing in the Guardian newspaper, on the fallout from the NSA stories, is now posted here.
UPDATE IIIUnderscoring all of these points, please take two minutes to watch this amazing video, courtesy of EFF, in which the 2006 version of Joe Biden aggressively debates the 2013 version of Barack Obama on whether the US government should be engaged in the bulk collection of American’s phone records:
That’s the kind of debate we need more of.