Category: Journalism
In 2003, New York Times journalist James Risen called US government representatives to ask about a covert CIA operation to disrupt Iran’s nuclear programme. Eager to root out any information leak that doesn’t present the administration in a positive light, the government began investigating who Risen’s source or sources might be. The Times ultimately killed the story at the government’s request, but Risen published some of it in his 2006 book ‘State of War.’
Risen’s suspected source, Jeffrey Sterling, has now been convicted of nine felonies, including Espionage (see his indictment), for allegedly disclosing classified information. Sterling. a former CIA officer, had his security clearance revoked in 2001 and then was fired in 2002, after he filed an official complaint of racial discrimination.
Sterling’s defence has argued that the government could not even prove that Risen’s source was Sterling, let alone that the alleged disclosure constituted espionage. Much of the controversy surrounding the case centered on whether Risen would be forced to testify against his source or sources. Risen fought the subpoena, with fellow journalists and civil liberties condemning the notion that a reporter should have to give up his sources, but the government won an appeal and compelled him to testify. However, just before the trial commenced, the DOJ reversed course and decided not to call Risen to the stand.
Still, the case proceeded:only the second espionage case to go all the way to trial (the first was US Army whistleblower Chelsea Manning, now serving 35 years in jail). But the prosecution’s case against Sterling has been entirely circumstantial, as even the judge in his case, Judge Leonie Brinkema, conceded. As Marcy Wheeler writes for ExposeFacts, which has been covering the trial in depth:
The only evidence of phone calls between Sterling and James Risen immediately before Risen went to the CIA with a fully drafted story on the Merlin operation consists of 2 minutes and 40 seconds of calls, total, across 7 phone calls. Then there’s one email in which Sterling sent Risen a link to an unclassified article on Iran posted by CNN.
Two minutes and 40 seconds for what would likely have been a 1000-word story?
The government also failed to convincingly prove that Sterling, if involved, was Risen’s lone source for the information in question: as Wheeler writes, prosecution witness “FBI Agent Ashley Hunt, admitt[ed] she had not even tried to gather evidence from some of the other possible sources for Risen, and had not succeeded for others.”
The jury deliberated for days and initially returned to the judge undecided, but it ultimately convicted Sterling of all nine counts. The sentencing trial is scheduled for 24 April. Sterling could theoretically face more than 100 years in prison, though judges in similar cases usually sentence concurrently — still the potential sentence is many years of jail time.
Sterling’s conviction is another landmark in the Obama Administration’s ongoing, unprecedented, and speech-chilling war on disclosures of information and therefore on the journalism these sources make possible. Government Accountability Project’s Jesselyn Radack, a whistleblower lawyer and DOJ whistleblower herself, swiftly condemned the conviction: “I’m frankly appalled that the jury would convict based on a purely circumstantial case,” Radack told Foreign Policy, calling the decision “a new low in the war on whistleblowers.”
As Foreign Policy continues, “While she thought an appeal very likely, Radack said the conviction would both discourage government sources from disclosing important information to journalists and intimidate reporters who might otherwise try to dig up such stories.”
Just after the jury delivered its verdict in Sterling’s case, the Department of Justice issued a press release claiming that whistleblowers can be prosecuted “without interfering with journalists’ abilities to do their jobs.” Nothing can be further from the truth. There is already evidence that the US government’s persecution of truthtellers has already silenced those in government who are otherwise compelled to reveal evidence of abuse and wrongdoing. Guardian journalist Maggie O’Kane said in 2013 that she and her colleagues spent six months trying to speak to soldiers, but that all but one were too afraid to speak out after seeing what happened (from prison abuse to a massive charge sheet) to Chelsea Manning. This chilling effect hinders journalists’ ability to do their jobs and citizens’ ability to hold their governments accountable.
Reports about an impending prosecution shows that Germany is pulling in opposite directions on whistleblower protection. On Friday, Der Spiegel suggested that the federal government is planning to prosecute an unknown whistleblower for revealing official secrets that were reported in that publication and the Süddeutsche Zeitung.
The news of this investigation comes as Germany’s official inquiry into surveillance, launched in the wake of Edward Snowden’s revelations, becomes increasingly mired in protracted arguments over the disclosure of information that implicates Germany’s spy agencies as much as it does the NSA. Despite attempts to restrict the documentation and witnesses available to the inquiry, it has so far revealed loopholes Germany’s signals intelligence agency, the BND, uses to circumvent the prohibition on German nationals and new details about controversial joint operations with the NSA.
The German government has reacted poorly to these disclosures, to the point of warning of possible prosecution should further information reach the media.
Improving Germany’s whistleblower laws
Given that Germany is one of the countries that has shown the strongest support for Edward Snowden – a recent survey shows that the NSA whistleblower has better public recognition there than the US – the country’s own whistleblower protections are surprisingly poor. A 2011 judgment from the European Court of Human Rights has yet to be reflected in domestic law and, as a result, Germany’s truthtellers have to wait for employment tribunals to rule in their favour, by which point employer retaliation is already a fait accompli.
Last month, Germany’s Green representatives, led by Hans-Christian Stroebele, proposed new legislation to improve the situation. On his website, Stoebele explains that the bill is intended to “significantly improve whistleblowers’ protection from employer retaliation or dismissal and to improve legal certainty.”
This isn’t the first time the German Greens have tried to introduce a law like this, but this latest attempt is notable because it has the potential to do more than bring Germany into the mainstream of legal protections for whistleblowers. Provisions in the bill promise to erase the artificial divide that leads to national security whistleblowers facing severe retribution without the protections other public employees enjoy. Stroebele has been clear that the Bill specifically covers cases where a secret service employee “discloses confidential information to uncover a serious grievance, such as massive violations of fundamental rights.”
Protecting alleged sources before charge
Alleged sources who are under investigation and unable to come forward publicly find themselves in a particularly invidious position and in real need of support. Courage runs the only fund designed to guard alleged truthtellers who are obliged to remain anonymous.
Updated below
This week, arguments were made in the first federal whistleblower protection case ever to reach the US Supreme Court. The case could set a precedent for protecting whistleblowers across the board — not just for those disclosing sensitive information, but those in every government agency — who face regulation-based retaliations for exposing information in the public interest.
Robert J. Maclean is a former air marshal who blew the whistle on Transportation Security Administration (TSA) cuts to MSNBC in 2003, after seeking internal remedies. In response, the TSA reversed its decision to cut down on air marshals during overnight flights but also fired Maclean several years later for disclosing “Sensitive Security Information,” which isn’t illegal but does breach their internal regulations.
In 2009 Maclean, represented by the Government Accountability Project, challenged his dismissal at the Merit Systems Protection Board, on the grounds that “his disclosure of the text message was protected under the Whistleblower Protection Act of 1989 (WPA), because he ‘reasonably believe[d]’ that the leaked information disclosed ‘a substantial and specific danger to public health or safety.’”
The MSPB sided with the government’s view that the “WPA’s ban on disclosures ‘specifically prohibited by law’ encompassed ‘information that is specifically prohibited from disclosure by a regulation promulgated pursuant to an express legislative directive.’” However, last year a three-judge Federal Circuit panel vacated that ruling on appeal. Now the Department of Homeland Security wants the U.S. Supreme Court to overturn that ruling, claiming it “clears a path for any employee to do what [MacLean] did.”
At the Supreme Court
SCOTUSblog frames the basic question facing the Supreme Court as follows:
For a disclosure to be “specifically prohibited by law,” must an Act of Congress expressly bar that specific disclosure, or is it enough for Congress to generally delegate to an administrative agency the power to bar that specific disclosure?
A win for the Department of Homeland Security would represent a significant weakening of US whistleblower laws that, for non-classified sectors at least, are relatively well regarded.
The court heard oral arguments this week, and journalists are reporting that the government faced tough questioning from the justices, with Maclean’s case appearing to be favoured. The Washington Post writes that “the tone of the questions and comments from the justices hearing his case provided ample reason for this former air marshal to feel good about the first Supreme Court case directly involving a federal whistleblower.”
As the New York Times reports, “Ian H. Gershengorn, a deputy solicitor general, received hostile questions from most of the justices. Justice Antonin Scalia, for instance, was unconvinced by Mr. Gershengorn’s attempt to argue that the word “law” in isolation encompassed some but not all regulations.”
Furthermore,
Some justices wondered how transportation workers could tell what information was too sensitive to be disclosed. Chief Justice John G. Roberts Jr. noted that the government’s own brief had conceded that Mr. MacLean had been free to tell reporters “that federal air marshals will be absent from important flights” but also decline “to specify which flights.”
Justice Sonia Sotomayor told Maclean’s lawyer, “The facts are very much in your favor.”
Whether or when the justices will deliver a ruling remains to be determined, but follow the case’s progress here, and we will report on any updates.
Update: 22 January 2015
On 21 January, the Supreme Court ruled 7-2 in MacLean’s favour.
As SCOTUSblog’s Steve Vladeck writes, “Chief Justice Roberts quickly dispensed with the government’s theory – that the TSA regulations prohibiting unauthorized disclosure of SSI ‘specifically prohibited’ MacLean’s disclosure ‘by law.’”
Vladeck continues, commenting on the implications this case has for future whistleblowers:
the decision in MacLean clarifies that the Whistleblower Protection Act’s exemption for disclosures “specifically prohibited by law” does not apply to disclosures prohibited solely by agency regulations – or even by statutes that command the agency to promulgate non-disclosure regulations. Instead, the statute must itself bar the disclosure for the disclosure to be “specifically prohibited by law.
For now, whistleblower protections have not been weakened, though Chief Justice Roberts has invited Congress or the President, rather than the Court, to address whether to narrow them in national security cases.
In the summer of 2013, many wondered why journalists in the UK, one of the countries most implicated in mass surveillance, didn’t pursue Edward Snowden’s revelations more aggressively. Even when the British government began to directly intimidate those who were reporting on the Snowden documents – by detaining David Miranda under anti-terrorism legislation and insisting that they should be able to destroy computer equipment within the Guardian offices – protest against these actions in the UK media was muted, with a significant section of the UK press deciding to stand up for the rights of the UK state rather than the freedom to report.
That may now, belatedly, be changing. A new scandal has demonstrated that journalists have a real interest in fighting surveillance – and that current UK practices put source protection right in the firing line. This month, London’s Metropolitan Police published a report that confirmed they had used surveillance powers to obtain the phone records of Sun journalist Tom Newton Dunn without his knowledge in order to find out who his source was.
This direct threat to journalists’ interests has focused attention on just how routine communications data (metadata) orders are in the UK. Unlike ‘live’ intercepts of data or content, which require a court order, British public bodies can obtain historical metadata simply by making a request to a telecommunications provider for any data they hold. There is no judicial involvement in these orders, about half a million of which are made in the UK every year. Even the official charged with overseeing these orders has admitted that the 514,608 requests made in the UK in 2013 “seems to me to be a very large number. It has the feel of being too many.”
There are few safeguards on the use of these orders under the UK’s Regulation of Investigatory Powers Act (RIPA). In particular, RIPA makes no provision for the protection of information that might relate to journalists’ communication with sources, or indeed communications with lawyers. The ability of police to effectively obtain metadata at will means that many, if not most, journalists in the UK are no longer able to offer their sources an assurance of confidentiality. Recent changes to UK surveillance laws suggest that journalists and lawyers should now treat online services and webmail with a similar degree of caution.
Journalists have responded to the Metropolitan Police’s report with op-eds and a Save our Sources campaign. The absence of safeguards in the law is now also the subject of a legal challenge launched in the European Court of Human Rights by the Bureau of Investigative Journalism, the third such challenge to be made to the UK’s surveillance practices since the start of reporting on Edward Snowden’s revelations.
Gavin Millar QC, who is aiding the Bureau of Investigative Journalism with the case, has said that police “routinely” use RIPA powers to obtain journalists’ metadata and identify their sources:
This circumvents the rights of a journalist to protect a source and to a hearing before a judge before any order is made to disclose such information.
The sheer volume of data being harvested by GCHQ under RIPA means that confidential journalistic material is also being covertly accessed and analysed by security and intelligence all the time. Again sources are being identified – but on a much larger scale.
Yet there is no word in RIPA or the government’s code of practice under it about these key journalistic rights. The UK simply flouts the Convention.
Human Rights Watch and the American Civil Liberties Union have published a joint report highlighting the chilling effects that US surveillance instills in journalists and lawyers, concluding that “surveillance is undermining media freedom and the right to counsel, and ultimately obstructing the American people’s ability to hold their government to account.” The EFF writes that the report “adds to the growing body of evidence that the NSA’s surveillance programs are causing real harm.”
As the ACLU explains:
The report is drawn from interviews with some 50 journalists covering intelligence, national security, and law enforcement for outlets including the New York Times, the Associated Press, ABC, and NPR.
The U.S. has long held itself out as a global leader on media freedom. However, journalists interviewed for the report are finding that surveillance is harming their ability to report on matters of great public concern.
Surveillance has magnified existing concerns among journalists and their sources over the administration’s crackdown on leaks. The crackdown includes new restrictions on contact between intelligence officials and the media, an increase in leak prosecutions, and the Insider Threat Program, which requires federal officials to report one another for “suspicious” behavior that might betray an intention to leak information.
The HRW/ACLU report is part of a growing body of evidence that journalists and lawyers feel their ability to protect sources and clients is threatened. In an interview with the Guardian last month, Edward Snowden recommended that professionals start to use encryption:
An unfortunate side effect of the development of all these new surveillance technologies is that the work of journalism has become immeasurably harder than it ever has been in the past. Journalists have to be particularly conscious about any sort of network signalling, any sort of connection, any sort of licence plate reading device that they pass on their way to a meeting point, any place they use their credit card, any place they take their phone, any email contact they have with the source because that very first contact, before encrypted communications are established, is enough to give it all away.
No matter how careful you are from that point on, no matter how sophisticated your source, journalists have to be sure that they make no mistakes at all in the very beginning to the very end of a source relationship or they’re placing people actively at risk. Lawyers are in the same position. And investigators. And doctors.
While professional associations have taken part in international investigations and legal challenges resulting from the Snowden revelations, as the HRW/ACLU report describes, there is a lack of consensus about what best practice should be for journalists and lawyers in a post-Snowden world.
NFA Report on Surveillance Costs
Just a day after the HRW/ACLU report, the New America Foundation published ‘Surveillance Costs: The NSA’s Impact on the Economy, Internet Freedom & Cybersecurity,’ an attempt to “quantify and categorize the costs of the NSA surveillance programs since the initial leaks were reported in June 2013.” The NFA finds that “the NSA’s actions have already begun to, and will continue to, cause significant damage to the interests of the United States and the global Internet community,” focusing on economic costs to US businesses, the harm done to US credibility and the “serious damage to Internet security through [the NSA’s] weakening of key encryption standards.”
Series of Reports on Surveillance Impact
The reports continue a series of investigations into the many ways that US surveillance infringes on Americans’ rights and privacy. In October 2013, the Committee to Protect Journalists published ‘The Obama Administration and the Press: Leak investigations and surveillance in post-9/11 America,’ a look at how the current crackdown on whistleblowers and the journalism they enable is dissuading officials from speaking to the press.
CPJ writes:
U.S. President Barack Obama came into office pledging open government, but he has fallen short of his promise. Journalists and transparency advocates say the White House curbs routine disclosure of information and deploys its own media to evade scrutiny by the press. Aggressive prosecution of leakers of classified information and broad electronic surveillance programs deter government sources from speaking to journalists.
New York Times reporter Scott Shane told CPJ:
Most people are deterred by those leaks prosecutions. They’re scared to death. There’s a gray zone between classified and unclassified information, and most sources were in that gray zone. Sources are now afraid to enter that gray zone. It’s having a deterrent effect. If we consider aggressive press coverage of government activities being at the core of American democracy, this tips the balance heavily in favor of the government.
CPJ shows that though 9/11 was a “watershed moment” that led to the vast expansion of secrecy and surveillance, the Obama Administration has been even more closed off to the press than previous presidents.
PEN America
In November 2013, PEN America released a report on a less-discussed sector of surveillance targets: writers. PEN concludes that “freedom of expression is under threat and, as a result, freedom of information is imperiled as well.”
Recounting their findings, PEN writes:
Fully 85% of writers responding to PEN’s survey are worried about government surveillance of Americans, and 73% of writers have never been as worried about privacy rights and freedom of the press as they are today. PEN has long argued that surveillance poses risks to creativity and free expression. The results of this survey—the beginning of a broader investigation into the harms of surveillance—substantiate PEN’s concerns: writers are not only overwhelmingly worried about government surveillance, but are engaging in self-censorship as a result.
PEN says that writers showed a “reluctance to write or speak about certain subjects; reluctance to pursue research about certain subjects; and reluctance to communicate with sources, or with friends abroad, for fear that they will endanger their counterparts by doing so.”
Privacy and Civil Liberties Oversight Board
Finally, the Privacy and Civil Liberties Oversight Board published, on 2 July 2014, a ‘Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act.’ The NSA has broadly interpreted section 702 to sweep up massive amounts of data on both foreign citizens and Americans.
The Center for Constitutional Rights, which represents several inmates at Guantanamo Bay, criticises some aspects of PCLOB’s focus, but writes:
Deeply troubling, the report found that attorneys’ legally-privileged communications are used and shared by the NSA, CIA and FBI unless they are communications directly with a client who has already been indicted in U.S. courts, which strongly suggests that the contents of privileged attorney-client communications at Guantanamo are subject to NSA warrantless surveillance. This raises serious concerns about the fairness of the military commission system and would seem to violate court orders entered in Guantanamo habeas cases that protect attorney-client privilege.
The UK’s independent reviewer of terrorism legislation has said that the British government is drawing its interpretation of ‘terrorism’ too broadly, telling the BBC that the current definition “has begun to catch people it was never really intended to catch.”
In a report delivered to Parliament on 22 July 2014, Anderson expressed particular concern about the possibility of journalists and bloggers having their activities made a subject of UK terrorism laws. The case of David Miranda, the partner of Glenn Greenwald, who was stopped at Heathrow airport for 9 hours in August 2013 and had his electronic equipment seized by UK police brought this issue into sharp focus. The action of UK border police was upheld by the High Court in London on 19 February 2014.
In particular, Anderson points out that the UK does not require a link to acts of violence in the way it defines terrorism, only an intent to “influence the government.”
What the Miranda judgment reveals is that the publication (or threatened publication) of words may equally constitute terrorist action. It seems that the writing of a book, an article or a blog may therefore amount to terrorism if publication is “for the purpose of advancing a political, religious, racial or ideological cause”, “designed to influence the government” and liable to endanger life or create a serious risk to health or safety.
As Anderson argues, the UK’s statutory definition of terrorism is broad enough that a blogger arguing against the vaccination of children on political or religious grounds could theoretically fall within its bounds if their actions were judged to present a serious risk to public health. Under ancilliary laws, a large swath of speech acts – including the possession of articles for a purpose connected with publication, acts preparatory to publication or even the encouragement of such acts of publication – could also be construed as offences.
The degree of discretion this “over broad” definition allows executive authorities, concludes Anderson “leaves citizens in the dark and risks undermining the rule of law,” weakens public support for terrorism legislation generally and threatens to chill “legitimate enquiry and expression” by introducing the possibility of arbitrary prosecution.
David Miranda’s appeal is due to be heard by the Court of Appeal later this year.
Australian attorney general George Brandis has introduced an amendment to National Security Bill 2014, which he says will criminalise the removal of intelligence information from an agency but is written so broadly that it can potentially be used to punish journalists for publishing or reporting on intelligence information they discover or receive.
As the Guardian reports, according to the Bill’s explanatory memorandum, it criminalises “disclosures by any person, including participants in an SIO [special intelligence operation], other persons to whom information about an SIO has been communicated in an official capacity, and persons who are the recipients of an unauthorised disclosure of information, should they engage in any subsequent disclosure”.
This last clause effectively makes journalism — publishing and reporting on secret government documents — a crime.
The new Bill is in line with an ongoing crackdown on whistleblowing and subsequently on the journalism it enables, in the spirit of the US government’s persecution and ongoing investigation of WikiLeaks for publishing Iraq and Afghanistan war logs and State Department cables. In the US trial of Army whistleblower Chelsea Manning, military prosecutors avowed that they would have tried Manning the same way had she passed the documents to the New York Times rather than WikiLeaks.
It also recalls the abusively broad language of the 1917 Espionage Act, a conviction of which requires merely “potential” harm — no proof of actual damage caused is needed. As Pentagon Papers whistleblower Daniel Ellsberg writes, reversing Manning’s 35-year prison sentence and conviction on multiple Espionage Act counts is America’s best shot at ending the government’s use of the law to imprison truthtellers.
The Espionage Act carries a ten-year prison term, and Australia’s new bill does as well, making it a crime to “endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.” This language hypes fears of national security damage without any factual backing. Snowden-released documents have been published, excerpted from and reported on for more than a year, and American officials have been unable to point to any tangible harm as a result.
Rather than learn from this lack of damage that these documents needn’t have been classified in the first place, Brandis is moving in the opposite direction, stoking fears in an effort to dissuade whistleblowing and, more broadly, Australian journalism.