Dan Froomkin's Temporary Tumblr Depository

I have a public PGP key now. Do you?

new one, as of 10/14/2013

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#FearlessPanel: Who Would You Like To See in an Online Discussion on NSA Follow-up Stories?

One of the many things I intend to do on the nearly-ready-for-launch FearlessMedia.org website is put together and moderate panel discussions – using Google Hangouts on Air or the like – to generate ideas for follow up stories on important issues that need to remain in the public discourse.

My goal in the next week or two is to put together a group of journalists, experts and others to discuss what stories reporters who aren’t part of any leak-powered consortium nevertheless could or should be doing about what we’ve learned so far, to move the story forward.

I’m thinking along the lines of unanswered questions, third-party conduct, missing context, policy implications, fact-checking, failed oversight, etc.

So who should be on the panel? Who do you think would participate the most productively in a robust and succinct dialogue on the topic?

I will presumably invite Glenn Greenwald and Bart Gellman to weigh in, but perhaps also James Bamford to talk about the NSA in general, and maybe representatives of the ACLU, EPIC, EFF and/or Cato. What journalists/experts/advocates would you like to hear from?

Or would you like to participate? What would you contribute?

Please respond below, by email at froomkin@gmail.com, or by Tweet, using #Fearlesspanel

Ornstein & Mann on the Continuing Obliviousness of the Washington Press Corps

By Dan Froomkin

One of the central points of 2012’s breakout political book by longtime political observers Thomas Mann and Norman Ornstein, It’s Even Worse Than It Looks, was that the elite Washington political press has been committing some pretty serious malpractice.

In an interview I had with them shortly after the November election, they made it even more abundantly clear. Campaign reporters, they told me, essentially chose to ignore the biggest and most obvious story of the race: The radical right-wing, off-the-rails lurch of the Republican Party, both in terms of its agenda and its relationship to the truth.

Now, a year after the hardcover publication of the book, they’ve written an epilogue for the paperback, excerpted today in Salon.

Nothing they’ve seen has changed their mind about the state of the modern GOP. They write:

The old conservative GOP has been transformed into a party beholden to ideological zealots, one that sees little need to balance individualism with community, freedom with equality, markets with regulation, state with national power, or policy commitments with respect for facts, evidence, science, and a willingness to compromise.

And returning to the point that made them media pariahs after their book first came, they have this to say about the ongoing political coverage:

But the media continues, for the most part, to miss this story. A good example was the flurry of coverage in the early months of the 113th Congress based on or at best testing the proposition that policymaking failures could be attributed to the failures of Obama’s presidential leadership. Bob Woodward may have started the pack journalism with his conclusion that President Obama, unlike his predecessors Lyndon Johnson, Ronald Reagan, and Bill Clinton, “failed to work his will on Congress” (whatever that means). Soon the critical question to be parsed by the press was whether elements of Obama’s personality (aloofness) or strategic decisions on how and when to engage members of Congress, especially Republicans, accounted for the failure to reach bipartisan consensus. Republicans were delighted to provide commentary on behalf of the affirmative: “he doesn’t call us, meet with us, invite us to the White House, listen to our views, understand where we are coming from, etc.” The drumbeat from the press eventually led Obama to respond. He hosted a dinner with a dozen Republican senators at The Jefferson, lunch with Paul Ryan at the White House, and then a second dinner with another group of Republican senators. He also made trips to Capitol Hill to meet separately with both Republican conferences and Democratic caucuses. Initial reactions from participants were favorable, but it wasn’t long before reporters wondered if the president’s “charm offense” was failing.

The framing of this question reveals much about the state of American politics and media commentary on dysfunctional government.

Mann and Ornstein say the Woodward critique is ignorant of what is actually happening in Washington:

Persuasion matters if the people you are trying to persuade have any inclination to go along, or any attachment to the concept of compromise. But if a mythical magician could create a president from the combined DNA of FDR, LBJ, Tip O’Neill, Ronald Reagan, and Bill Clinton, the resulting super-president would be no more successful at charming or working his will in this context.

What they don’t get into is whether they think that ignorance is willful or not. They leave that for someone else to say.

* * * * * * *

Dan Froomkin is launching FearlessMedia.org, a website devoted to advocating for journalism that more aggressively rebuts misinformation and holds the powerful accountable.

Who’s reporting on Syrian refugees?

Leave it to Jon Stewart (he’s back!) to focus the appropriate amount of attention on the Syrian refugee crisis:

This NYT story on an awful milestone in the Syrian refugee crisis evidently didn’t make it into the actual paper: Flow of Refugees Out of Syria Passes Two Million.

WaPo, to its credit, ran this on A4, at least: U.N.: More than 2 million Syrians have fled their country

And if you want to do something about it: Help Syrian Refugees Survive. Donate Now!

Three Things Obama Said That Shouldn’t Go Unnoticed

Obama essentially acknowledges US as sole surveillance superpower: http://t.co/ENiRtG6uuO

Obama says he want to stop future presidents overstretching the boundaries of their authority in wars of choice: http://t.co/pHseO0XNJ6

Here’s the part where Obama acknowledges, and briefly responds to, the arguments against military action: http://t.co/NGDJgVSqg3

And while I have you here:

There’s another, even more important international norm: You don’t attack a county except in self-defense. http://t.co/fDD1vDhiDC

Obama’s Nobel Peace Prize speech: http://t.co/8Q92lUqgD6

From Obama’s Nobel speech: “ no nation..can insist that others follow the rules of the road if we refuse to follow them ourselves.”

And some really great reads today:

Gary Gensler’s heroic bid to regulate derivatives & the unprecendented lobbying blitz that kneecapped him http://t.co/GNdwjuGFke #mustread

As elite Washington hurtles toward actions that will stall the economy, it’s the non-elite who will bear the burden http://t.co/sD954V5zZO

Risen Asks Holder To Honor His Own New Rules, Holder Blows Him Off

By Dan Froomkin

New York Times reporter James Risen’s lawyers wrote a letter to Attorney General Eric Holder in late July, asking for a meeting about his case.

The letter explained that in light of the Justice Department’s new guidelines for the use of law enforcement tools on the media, Holder should drop the subpoena against Risen. Risen is refusing to testify against a former CIA agent charged with leaking classified information about a botched plot against the Iranian government.

Holder has not responded, so Risen and his lawyers publicly released the letter on Wednesday evening..

Just a week after the new guidelines were issued, a federal appellate court ruled that there is no such thing as reporter’s privilege, and ordered Risen to testify.

In their legal arguments, federal prosecutors had argued that what Risen did was “analogous” to a journalist receiving drugs from a confidential source, and then refusing to testify about it.

The new guidelines say a media subpoena is an “extraordinary measure” that should only be used as a “last resort”.

Risen’s lawyer, David N. Kelley, wrote in the letter: “Reporters are invariably the ‘only eyewitness’ to the 'crime’ of speaking with them. If the DOJ takes this approach, the new Guidelines will be a quickly forgotten promise.”

Yes, Yes They Are

By Dan Froomkin

Here’s a rare case of he-said/she-said reporting doing an absolutely first-rate job of capturing the essence of a complicated political story. It’s from today’s Washington Post story about how the Virginia gubernatorial race between Democratic political operator Terry McAuliffe and Republican Attorney General Ken Cuccinelli has turned into a particularly ugly name-calling contest.

Then, Post reporter Paul Schwartzman (@paulschwartzman) treats us to these two paragraphs:

Every day, it seems, Cuccinelli’s forces find ways to portray McAuliffe as an unethical and unprincipled carpetbagger, a political opportunist who doesn’t possess the government experience or knowledge of Virginia needed for the state’s top job.

At the same time, McAuliffe’s team pounces at the chance to depict Cuccinelli as a conservative zealot who is anti-gay and anti-woman and whose views on social issues are too extreme for a state evolving into a hub of cosmopolitan life.

Yes, that about sums things up.

NYT Bows to U.S. Request to Keep a Secret, Loses Scoop to McClatchy

The New York Times was leading its website Monday afternoon with what would have been a scoop on Friday, if the paper hadn’t submitted to a request by “senior American intelligence officials” to keep the details secret from the American public.

The story by Eric Schmitt and Mark Mazzetti describes how the worldwide terror alert that closed embassies and consulates throughout the Middle East arose from an intercepted communication in which al Qaeda leader Ayman al-Zawahri ordered Nasser al-Wuhayshi, the head of its Yemeni affiliate, to carry out an attack.

In the article posted on Friday, the Times reported the interception of a conversation “among senior operatives of Al Qaeda, in which the terrorists discussed attacks.”

Monday’s Times story noted that “the identities of the Qaeda leaders whose conversations were intercepted were witheld [sic] by The New York Times at the request of senior American intelligence officials. The names were disclosed Sunday by McClatchy Newspapers, and after the government became aware of the article, it dropped its objections to The Times’s publishing the same information.”

Indeed, the article by McClatchy reporters Ali Watkins and David Lightman in Washington and Adam Baron in Yemen reported on Sunday:

An official who’d been briefed on the matter in Sanaa, the Yemeni capital, told McClatchy that the embassy closings and travel advisory were the result of an intercepted communication between Nasir al-Wuhayshi, the head of the Yemen-based Al Qaida in the Arabian Peninsula, and al Qaida leader Ayman al Zawahiri in which Zawahiri gave “clear orders” to al-Wuhaysi, who was recently named al Qaida’s general manager, to carry out an attack.

McClatchy had not been asked to withhold the story. Mark Seibel, McClatchy’s chief of correspondents, told me in an email: “We got it out of Yemen. So no, no one asked us not to run it.”

He added: “And as you know, we wouldn’t be disposed to honor such a request anyway.”

The New York Times has a long history of bowing to government requests to withhold stories when the government cites national security grounds. Some of those don’t look so good in retrospect.

Perhaps most notably, of late, the Times suppressed its own major expose of NSA surveillance programs in the fall of 2004 – when it might have had a profound effect on President Bush’s reelection hopes. I once called that a case study in how the Bush administration intimidated the press after 9/11.

Those original NSA surveillance stories were reported by James Risen and Eric Lichtblau. In an essay adapted from his 2008 book, Bush’s Law: The Remaking of American Justice, Lichtblau wrote that “a healthy, essential skepticism … was missing from much of the media’s early reporting after 9/11, both at home in the administration’s war on terror and abroad in the run-up to the war in Iraq.”

Lichtblau wrote that the decision to run the story – finally – in 2005 reflected “the media’s shifting attitudes toward matters of national security–from believing the government to believing it less.”

But the reality is that co-author Risen had announced that he was going to expose the program in his own book, so the Times had no choice.

Indeed, at a July conference on whisteblowing and the press sponsored by the Government Accountability Project, Risen minced no words regarding requests to withhold information on ostensible national security grounds.

“I can tell you. I’ve been an investigative reporter for a long time, and almost always, the government says that when you write a story,” he said. “And then they can never back it up. They say that about everything. And it’s like the boy who cried wolf. It’s getting old.”

When it comes to news organizations withholding information from the public, there has to be a very good reason. The most obvious example would be withholding operational details of ongoing mission that could jeopardize the mission.

But in this case, that was an odd argument to make. al-Zawihiri and al-Wuhaysh had to have figured out it was their conversation that had been overheard, so it wouldn’t come as news to them, only to others.

And in a Tweet, Seibel added another reason the Times made the wrong call: It wasn’t even a well kept secret. “@adammbaron says the identities the US wanted kept secret were common knowledge in Yemen,” Seibel wrote.

I called the New York Times Washington bureau for comment, but was referred to the PR office in New York, which did not immediately respond.

Those Aren’t Journalists, They’re Political Operatives

By Dan Froomkin
FearlessMedia.org

The last thing we need is more hair-splitting arguments about who is a journalist and who is not. Professional or amateur, openly opinionated or trying desperately to appear otherwise, people who create works of journalism share a central intention: To inform.

But I would suggest that political operatives are another thing entirely. Political operatives, who when posing as journalists should instead be called propagandists, have only one goal, and that is to manipulate.

The revelation that a group of political figures, conservative activists and so-called journalists have been colluding to achieve their shared political aims suggests that we have a whole class of political operatives trying to pass themselves off as something they are not.

Political operatives, for instance, have no patience for information that might not serve their agenda – even if it’s true. While journalists are curious, propagandists are disciplined.

Journalists may have a goal in mind, but they don’t edit or coauthor strategy memos with their sources.

Most importantly, journalists do not knowingly spread misinformation or disinformation for any purpose. That is a disqualifying act, plain and simple, that definitively sends one over the line from journalism to something else entirely.

(I’m launching a new nonprofit venture called the Center for Accountability Journalism. Its website, fearlessmedia.org, will advocate for journalism that seeks the truth and holds the powerful accountable.)

Spy (Judge) vs. Spy (Judge)

By Dan Froomkin

Now that the full transcript of the July 9 hearing of the shiny new Privacy and Civil Liberties Oversight Board (PCLOB) is online, it’s worth revisiting the statement by James Robertson, a former federal district judge who served on the secret Foreign Intelligence Surveillance Court, also known as the FISA court, between 2002 and 2005.

A few days prior, U.S. District Judge Colleen Kollar-Kotelly, the former chief judge of the FISA court, had publicly bristled at the characterization of her court’s role in a 2009 National Security Agency Inspector General report made public by Edward Snowden and the Guardian.

The IG report indicated that the court essentially collaborated with the executive branch, taking on an unprecedented new role to give legal cover to the government’s secret surveillance programs.

In a statement to the Washington Post, Kollar-Kotelly huffily insisted: “I participated in a process of adjudication, not ‘coordination’ with the executive branch.“

Robertson disagreed, and said the court had instead allowed itself to be turned into an administrative agency. The full text:

I did sit on the FISA Court for a few years. I asked to be appointed to the FISA Court, frankly to see what it was up to. And I came away from it deeply impressed by the careful, scrupulous, even fastidious work that the Justice Department people, and the NSA, and FBI agents involved with it did.

The FISA Court was not a rubber stamp. The fact, the numbers that are quoted about how many reports, how many warrants get approved do not tell you how many were sent back for more work before they were approved.

So I know at firsthand, and I wish I could assure the American people that the FISA process has integrity and that the idea of targeting Americans with surveillance is anathema to the judges of the FISA Court, which they call the FISC.

But I have a couple of related points to make. First, the FISA process is ex parte, which means it’s one sided, and that’s not a good thing.

And secondly, under the FISA Amendment Act, the FISA Court now approves programmatic surveillance, and that I submit and will discuss for a few minutes, I do not consider to be a judicial function.

Now judges are learned in the law and all that, but anybody who has been a judge will tell you that a judge needs to hear both sides of a case before deciding.

It’s quite common, in fact it’s the norm to read one side’s brief or hear one side’s argument and think, hmm, that sounds right, until we read the other side.

Judging is choosing between adversaries.

I read the other day that one of my former FISA Court colleagues resisted the suggestion that the FISA approval process accommodated the executive, or maybe the word was cooperated. Not so, the judge replied. The judge said the process was adjudicating.

I very respectfully take issue with that use of the word adjudicating. The ex parte FISA process hears only one side and what the FISA process does is not adjudication, it is approval.

Which brings me to my second and I think closely related point. The FISA approval process works just fine when it deals with individual applications for surveillance warrants because approving search warrants and wiretap orders and trap and trace orders and foreign intelligence surveillance warrants one at a time is familiar ground for judges.

And not only that, but at some point a search warrant or wiretap order, if it leads on to a prosecution or some other consequence is usually reviewable by another court.

But what happened about the revelations in late 2005 about NSA circumventing the FISA process was that Congress passed the FISA Amendments Act of 2008 and introduced a new role for the FISC, which was to approve surveillance programs.

That change, in my view, turned the FISA Court into something like an administrative agency which makes and approves rules for others to follow.

Again, that’s not the bailiwick of judges. Judges don’t make policy. They review policy determinations for compliance with statutory law but they do so in the context once again of adversary process.

Now the great paradox of this intelligence surveillance process of course is the undeniable need for security. Secrecy, especially to protect what the national security community calls sources and methods.

That is why the Supreme Court had to refuse to hear Clapper versus Amnesty International. The plaintiffs could not prove that their communications were likely to be monitored so they had no standing. That is a classic catch-22 of Supreme Court jurisprudence.

But I submit that this process needs an adversary, if it’s not the ACLU or Amnesty International, perhaps the PCLOB itself could have some role as kind of an institutional adversary to challenge and take the other side of anything that is presented to the FISA Court.