Posted from Washington on July 28, 2014
Two influential advocacy organizations have issued a must-read report on how large-scale U.S. surveillance is not only harming journalism and the public’s right to know, but also undermining the rule of law by creating a chilling effect on lawyers trying to do their jobs in the national security realm.
That’s quite a strong and sweeping statement, but the 120-page report by Human Rights Watch and the American Civil Liberties Union backs it up in great detail, including interviews with more than 90 journalists, lawyers and both current and former government officials.
and association, press freedom, and the right to counsel, which are all protected by both
international human rights law and the US Constitution.”
The joint report, released on July 28, is titled, “With Liberty to Monitor All: How Large-Scale US Surveillance is Harming Journalism, Law, and American Democracy.”
It says the broad and deep surveillance that is occurring, largely out of public view, and government secrecy overall are undermining press freedom, the public’s right to information, and the right to counsel. These are all human rights essential to a healthy democracy, the groups say, and government actions are “ultimately obstructing the American people’s ability to hold their government to account.”
Many journalists writing about national security issues, as well as lawyers and others involved in the system, have been forced to adopt elaborate countermeasures in order to keep their communications, their sources, and other confidential information secure in light of what the groups say is an “unprecedented” level of U.S. government surveillance of electronic communications and transactions by the National Security Agency and other U.S. agencies.
“The work of journalists and lawyers is central to our democracy,” said report author Alex Sinha, the Aryeh Neier Fellow at Human Rights Watch and the ACLU. “When their work suffers, so do we.”
Here’s a link to the news release announcing the report, and here’s the report itself, which can be downloaded for free. Hard copies also can be purchased.
The report isn’t the first to conclude that journalists are finding that surveillance is “harming their ability to report on matters of great public concern.’’
But in its interviews with key journalists, the report reveals good detail on the topic, in its section on The Impact of Surveillance on Journalists, and in another on US Surveillance, Secrecy, and Crackdown on Leaks.
Among those quoted is Steve Coll, a noted author of national security books who is also a staff writer for The New Yorker and the dean of the Graduate School of Journalism at Columbia University. “Every national security reporter I know would say that the atmosphere in which professional reporters seek insight into policy failures [and] bad military decisions is just much tougher and much chillier,” Coll says.
That’s not surprising, given all of the revelations about NSA spying in the wake of the massive leaks of classified information about such programs by Edward Snowden. But it is very disconcerting, especially the linkage between the surveillance and media efforts to practice the kind of accountability reporting that is so essential to a democracy.
Washington Post reporter Dana Priest adds that by making it harder for reporters to do their jobs, the government “makes the country less safe.”
“Institutions work less well, and (secrecy) increases the risk of corruption,” Priest said, adding that, “Secrecy works against all of us.”
The report concludes that the chilling effect also has been significant on government officials, and details numerous deterrents put in place to discourage leaks, such as leak investigations and prosecutions, over-classification of documents and preventing officials from having contact with the media. Another significantly detrimental program: the “Insider Threat Program” that essentially requires employees to turn in colleagues who they believe may be leaking state secrets.
One of the most eye-opening aspects of the report is its section on The Impact of Surveillance on Lawyers and Their Clients. This is a part of the controversy that has received far less media coverage than the Obama administration’s crackdown on journalists, but it is especially disconcerting. The report says that the widespread surveillance has sowed deep levels of uncertainty and confusion among lawyers over how to respond to it, “perhaps even more so than the media.”
“Part of that uncertainty derives from the widespread sense that we have yet to learn the full extent of the government’s surveillance powers, and what steps the intelligence community is taking to avoid scooping up attorney-client communications,” said the report. “Part may also reflect the unsettled legal landscape regarding whether attorneys who are surveilled have legal recourse.”
The report found that large-scale surveillance programs endanger lawyers’ ability to communicate confidentially with clients, especially when the government takes an intelligence interest in a case. That’s a problem because failure to meet those responsibilities can result in lawyers facing discipline through professional organizations, or even lawsuits.
The surveillance programs also make it more challenging for lawyers to defend their clients, because they rely on the free exchange of information to build trust and develop legal strategies. “Both problems corrode the ability of lawyers to represent their clients effectively,” the report said.
“As with the journalists, lawyers increasingly feel pressure to adopt strategies to avoid leaving a digital trail that could be monitored. Some use burner phones, others seek out technologies designed to provide security, and still others reported traveling more for in-person meetings,” said the report. “Like journalists, some feel frustrated, and even offended, that they are in this situation. ‘I’ll be damned if I have to start acting like a drug dealer in order to protect my client’s confidentiality,’ said one.”
Said one lawyer specializing in international dispute resolution who was granted anonymity in exchange for being candid: “I found it shocking to think that the U.S. is doing this [surveillance]—and I was at DOJ before.”
Sinha, the report’s author, said, “The US holds itself out as a model of freedom and democracy, but its own surveillance programs are threatening the values it claims to represent. The US should genuinely confront the fact that its massive surveillance programs are damaging many critically important rights.”
To its credit, the report has a robust section on the Government’s Rationale for Surveillance, and it spoke in-depth with some key current and former officials, all of whom staunchly defended the surveillance as being both lawful and necessary to protect the nation from its many enemies.
“These programs are important, vital and lawful,” argued Bob Deitz, who served as General Counsel for the NSA from 1998 to 2006, in an interview with the report’s authors.
The authors did not conclude one way or another whether the programs fall within the letter of US statutory law, whether intelligence officials have engaged in willful misconduct or whether oversight has been adequate, saying such questions fall outside the scope of their report. “However, our research strongly suggests that the US did not design the programs with protection of human rights foremost in mind,” they wrote.
Perhaps most important, the two groups issued a list of recommendations, many of which are similar to those issued in the past year by the Committee to Protect Journalists and other organizations that have been sharply critical of the government’s surveillance.
It calls on the Obama administration and Congress to end “overly broad or unnecessary” surveillance practices, protect whistleblowers and reduce government secrecy and restrictions on official contact with the media. Like other organizations, it also calls on the government to “stop prosecuting people who disclose matters of great public interest.”
Josh Meyer is director of education and outreach for the Medill National Security Journalism Initiative. He spent 20 years with the Los Angeles Times before joining Medill in 2010, where he is also the McCormick Lecturer in National Security Studies. Josh is the co-author of the 2012 best-seller “The Hunt For KSM; Inside the Pursuit and Takedown of the Real 9/11 Mastermind, Khalid Sheikh Mohammed,’’ and a member of the board of directors of Investigative Reporters and Editors. | Earlier Insights columns
