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Thursday, January 02, 2014

On journalism and secrecy. Barton Gellman explained it a long time ago.

by digby

I'm noting all the usual sturm und drang among the cognoscenti over the New York Times' call for clemency for Edward Snowden this morning. I'm, as usual, fairly shocked that anyone thinks a newspaper would believe otherwise:
Seven months ago, the world began to learn the vast scope of the National Security Agency’s reach into the lives of hundreds of millions of people in the United States and around the globe, as it collects information about their phone calls, their email messages, their friends and contacts, how they spend their days and where they spend their nights. The public learned in great detail how the agency has exceeded its mandate and abused its authority, prompting outrage at kitchen tables and at the desks of Congress, which may finally begin to limit these practices.

The revelations have already prompted two federal judges to accuse the N.S.A. of violating the Constitution (although a third, unfortunately, found the dragnet surveillance to be legal). A panel appointed by President Obama issued a powerful indictment of the agency’s invasions of privacy and called for a major overhaul of its operations.
Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service. It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community.
That would be a sort of Ellsberg model, at least the part about spending his life advocating for greater privacy and stronger oversight of the runaway intelligence community. It's nice to see at least the New York Times editors showing they understand their function in our democracy.

This is not universally understood, obviously. Over the holiday there were plenty of examples of journalists and academics making assertions about Snowden that just aren't true. For instance, many of them seem to be under the impression that he still has documents and is doling them out piecemeal to papers around the world and they are publishing them blindly. According to Barton Gellman this is not true. He made it quite clear in this appearance on MSNBC that Snowden gave all the documents to the three journalists, Gellman, Greenwald and Poitras, and they have all been going through institutional news organizations with editors and lawyers and other journalists vetting the material in consultation with experts. Snowden has nothing to do with how the material is being released.

As to the question of how journalists and news organizations make judgments about government secrecy, after having been contentiously challenged by the MSNBC host, Gellman tweeted out a link to the text of a talk he gave all the way back in 2003 on this subject. For those who do not understand the necessary give and take between government power and a free press in our democracy this lays it all out.  Gellman basically describes a system in which nobody is truly competent to balance the twin needs of liberty and security on their own. Not the government, not the press, not the experts or the people. So we have come to a strange accommodation that resembles nothing so much as democracy itself --- a terrible system except for all the others. We are organized in such a way that all these competing interests wrestle with one another for supremacy under the principles of our Bill of Rights. It's sloppy and unsatisfying but nobody's yet come up with a better way to do it and frankly, I don't see what will. Humans are what humans are and the only thing we can do is hope that the balance is struck through a sort of trial and error. I'm ok with this. I don't trust individuals and I don't trust bureaucracies but I do sort of trust the idea that we can get it right most of the time if these competing interests do their jobs.

Gellman's speech took place during the early days of the Iraq war. He talks about the Bush administration lies that got us into that war and his own contemporary reporting exposing those lies. Those stories were all based on leaks and classified documents obtained by reporters and published for the people to see. That happened during a war with troops on the ground and in the perhaps legitimately more dangerous post 9/11 environment. Should the Washington Post not have published? Were we better off knowing this information? Did it result in a clearer picture of a government using it's "security and secrecy" power to advance an agenda dishonestly? I would strongly argue yes. Your mileage may vary. But I don't think we are any less safe because of those revelations. In fact, I think we're safer because we are much more skeptical of the "trust us" argument. I'm not saying it will or won't happen again, but in any case a free press is needed to push back if it tries.

This is how a real journalist, acknowledging that the system we have for dealing with secrets is necessarily ad hoc and inelegant, thinks about secrets:
There may be no Great Balancer of the interests at stake, but it is possible to describe some normative elements of the balance. We can identify more and less harmful forms of secrecy, better and worse reasons to withhold information from "we the people," and factors that heighten and diminish the case for disclosure.

I am short on time, so I'll sketch only a few. There are some reasons for secrecy that a self-governing people could never accept. One of them -- I have heard it offered many times -- is that the people will form the wrong views, or make the wrong choices, and therefore must not be told. It is antithetical to anything I call consent that government should assume such a power.

There are forms of secrecy that are more and less damaging to the project of self-government.

Simple secrets are those we know we don't know. We can leave room for that uncertainty as we form our views. A complex secret, the very existence of which is unknown, is harder to justify. It can have an impact that compares to coercion or fraud. In a used car sale, a simple secret is when the seller says he has another offer but won’t disclose the terms. A complex secret is when the seller forgets to mention that the transmission fell out last week.

We can also distinguish honest and deceptive secrets. Churchill said the truth in wartime is so valuable that it must be “attended by a bodyguard of lies." I do not believe we can reconcile deception for our own good with any meaningful understanding of self-government. In principle, it is never acceptable.

The duration of a secret makes a difference. A fleeting embargo on information has far less impact on self-government than a secret maintained beyond a point of decision -- an election, for example, or the passage of a law to which the secret is pertinent.

There are easy questions of secrecy as well as hard ones. Sometimes strong security interests collide with weak public interests in disclosure. We do not publish the names of clandestine agents; future combat operations of the U.S. military; technical details that would enable defeat of U.S. weapons or defenses; or anything, broadly speaking, that puts lives at concrete and immediate risk.

At other times the mismatch of interests is reversed. The U.S. military almost never permits the whereabouts of its deployed units to be disclosed. That reflects a valid concern when a small force, for example, is operating behind enemy lines. It is far less so when the unit dominates its surroundings, is well known to those nearby and is garrisoned in a well-defended redoubt.

I am quite certain I do not speak for The Washington Post, but here are some personal observations about its practice. We seldom if ever agree to withhold information that exposes a government lie, even a well intended one. We give no special weight to preventing diplomatic embarrassment. We acknowledge no right of privacy for individuals acting in their capacity as government officers, and so their positions in internal debate are fair game.
That's what I thought journalism was. I guess I'm still gobsmacked that big time reporters and news analysts who seem to be on TV for hours on end every day think otherwise.  I get why average people may not immediately understand the need for the press to be adversarial with the government on these issues but I will never in a million years get over the spectacle of journalists failing to instinctively know this in their bones. But then a lot of these folks are of the Judith Miller school, reporters who think journalistic integrity means protecting the high level sources who leak lies and feed them talking points to dishonestly advance their agenda so I suppose it makes some sense.

Update: Margaret Sullivan, the NYT public editor reports on the passionate response to the editorial. I'm pleasantly surprised by this aspect of it:

As for the extremely politicized nature of the response – with support for Mr. Snowden coming largely from the left – Mr. Rosenthal said that, by rights, “conservatives should be the most outraged” because of the intrusion of government that they normally oppose.

The most heartening response, he said, was from readers who said that The Times’s editorial “had forced them to sit down and really consider what they thought.” For some, at least, the editorial brought about “more textured thinking” on a difficult subject.

That's good news, although I am anything but surprised that the right would fail to be outraged by government intrusion. Despite their constant caterwauling about freedom, they are authoritarians at heart whose only real concerns about government power have to do with their guns and their tax money benefiting people who aren't like them.

Sullivan concludes:
Like The Times’s editorial board, I believe that Mr. Snowden has done the United States, and in fact, the world, a great service.

I agree wholeheartedly with this line in the editorial’s concluding paragraph: “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.”
That's the upfront journalistic integrity that made me name her my choice for best columnist of the year.


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