What the Prism Stories Tell Us About the Press

If you don’t share my fascination with the journalistic ethics of the Snowden reporters, you can skip this long piece.  But both of the protagonists have now defended themselves, so I’m posting their messages, with commentary.

I began the exchange when I questioned why Glenn Greenwald and the Guardian waited two weeks to release NSA’s minimization procedures, which revealed extensive limitations on how NSA handles information about Americans. It seemed odd that Greenwald didn’t tell us about those procedures in his original story about Prism, which after all quotes an intelligence community official who defends Prism by invoking the minimization procedures:

“The program is subject to oversight by the Foreign Intelligence Surveillance Court, the Executive Branch, and Congress. It involves extensive procedures, specifically approved by the court, to ensure that only non-US persons outside the US are targeted, and that minimize the acquisition, retention and dissemination of incidentally acquired information about US persons.”

In Greenwald’s first story, this passage just sits at the very end, like the warnings that follow an ad for Viagra.  There’s no hint that Greenwald has copies of the minimization procedures and can confirm much of what the official says.

So why, I asked, did he wait two weeks before publishing the documents and providing much-needed context? To my mind, that was the act not of a journalist committed to informing his readers; it was more like the act of an advocate hoping to get a firestorm started before disclosing information that might give readers second thoughts.

Greenwald is nothing if not diligent in tracking his online reputation.  He tweeted a truculent defense a few hours after my post:

@stewartbaker The WashPost had the same docs, yet didn’t publish it until we did. How do you explain that? Do they also hate America?

A fair question. The Post story was similar in many ways to the Guardian piece; it too included the “extensive procedures” quote, though a bit higher and with a smidgen of backhanded confirmation:

The Obama administration points to ongoing safeguards in the form of “extensive procedures, specifically approved by the court, to ensure that only non-U.S. persons outside the U.S. are targeted, and that minimize the acquisition, retention and dissemination of incidentally acquired information about U.S. persons.”

And it is true that the PRISM program is not a dragnet, exactly. From inside a company’s data stream the NSA is capable of pulling out anything it likes, but under current rules the agency does not try to collect it all.

But why did the Post stop with the vague reference to “current rules” when it could have confirmed the official’s statement by releasing the minimization documents it already had? I still didn’t have a better answer than the one I started with.  So I sent Bart Gellman an email asking for comment.  (He’s asked me his share of tough questions over the years, so it seemed only fair.)

To his credit he gave me a thoughtful response, and I’m reprinting it full, with a bit of commentary. It begins with some reflexive High Journalism:

I can’t discuss when and from whom I obtained particular documents, other than what I have already reported. Your analysis relies pretty heavily on assumptions about the answers. Glenn Greenwald is right to say, on that basis, that your critique of the Guardian would apply to my coverage as well.

I have taken no position on whether the programs at issue are good or bad, properly tailored or overbroad. I am doing my best to unearth the facts that would enable such a debate. That is what journalism is supposed to do.

But he then gets down to talking about the minimization guidelines:

The newly disclosed minimization procedures do indeed mitigate the privacy intrusions of the NSA domestic collection programs, for the reasons you state. Those procedures rebut broad claims of an unchecked program of espionage on Americans, but those have never been my claims. Each of my stories has included some version of this paragraph:

Foreigners, not Americans, are the NSA’s “targets,” as the law defines that term. But the programs are structured broadly enough that they touch nearly every American household in some way. Obama administration officials and career intelligence officers say Americans should take comfort that privacy protections are built into the design and oversight, but they are not prepared to discuss the details.

It has been in the administration’s power all along to release details of the minimization rules. Withholding them is hard to defend on national security grounds, and harder still when the president says he welcomes a debate on the appropriate boundaries of surveillance. When I asked senior legal and operational figures in the intelligence community for information about the NSA’s minimization procedures, they told me to submit a FOIA request.

I count a couple of different justifications in there.  Bart Gellman admits that disclosing the guidelines would have mitigated some privacy concerns. But, he seems to be saying, he had no obligation to mitigate those privacy concerns because his story was written to raise different privacy concerns — and anyway, it was up to the administration to release the guidelines if they thought it would be helpful to them; instead they gave him the old FOIA schtick.

Give Bart Gellman credit for some candor here, but I still don’t find his reasons persuasive. Okay, the administration refused to declassify the guidelines. But really, so what?  The government didn’t declassify Prism, either, and that didn’t stop him from publishing the Prism slides.  Come to think of it, he ultimately published the guidelines, too.  So his defense boils down to saying that he didn’t have to release documents when they might have eased Americans’ privacy concerns about Prism because he was careful to avoid writing about any privacy concerns that could be eased by the documents. Really?  Somehow I feel as though I’m being asked to read the Washington Post the way Sovietologists used to read Pravda — more for what it doesn’t say than for what it does.

The most interesting part of Bart Gellman’s response, though, is the last section, where he tells me what privacy concerns he feels are not addressed by the minimization procedures.  I think it’s fair to say that his views are deeply held:

Before we can talk sensibly about minimization, we have to establish – against the vigorous denials of the intelligence community and the administration – that some U.S. persons’ communications, metadata and content, are in fact being collected and reviewed without individual warrants. The official statements have leaned heavily, in ways that are misleading to a general audience, on terms of art such as “targeting” and “inadvertent.”

The NSA and its advocates have not acknowledged the implications of “incidental” collection or the inherent impact on privacy of contact chaining analysis. The standard analytic procedure of reviewing communications “two hops” from the target (to contacts of contacts of those targets) obviously sweeps in large numbers of innocent communications. If each target and each contact of each target communicates with 100 people in the course of a year, a fairly conservative estimate, two-hop contact chaining touches up to 10,000 people. (Presumably there will be fewer because some of those contacts will overlap.) If you prefer to assume only 50 contacts each, the potential is up to 2,500 people. Multiply either number by thousands of targets and the universe of people surveilled starts getting pretty big. Only when we understand collection does minimization become relevant.

Because the president stated categorically that the programs at issue “do not involve listening to people’s phone calls, do not involve reading the emails of U.S. citizens or U.S. residents, absent further action by a federal court,” the new documents are valuable in part because they seem to demonstrate that the president’s words are untrue. The NSA is in fact collecting and reviewing some calls and emails without an individual warrant or subpoena. If the president had said these programs don’t target Americans and don’t routinely eavesdrop on or read over the shoulders of most Americans, he’d have been right. He did not say that.

It is far from clear that mainstream legal interpretations either of FISA or the 4th Amendment would accommodate the FISC’s rulings. It is equally unclear whether majorities in the House and Senate would regard them as consistent with the laws they passed. There would certainly be a healthy controversy about any theory that relied either on the view that communications “obtained” by the NSA are not “acquired” until they are searched, or that minimization of any kind can substitute for the constitutional requirement of individualized suspicion. We are unable to debate the laws that govern our liberties because their fundamental meaning, as defined by the court, are classified Top Secret and higher. The compulsory secrecy in itself raises questions worth asking about the balance of self-government and self-defense.

Although the broad principles of minimization offer valuable protections, we have no information about the way they are applied. It appears that the court relies on certifications from the Attorney General and Director of National Intelligence without engaging in an independent factual review. Given the scale and complexity of these programs, which involve tens of thousands of “selectors” (search terms), it is not easy to imagine how the court could even try. This gives greater importance to the latitude described in the recent documents, which I will leave to better qualified people to interpret. The procedures are avowed, for example, to be:

reasonably designed to —

[a.] ensure that an acquisition authorized pursuant to subsection 702(a) of the Foreign Intelligence Surveillance Act of 1978, as amended (“the Act”), is limited to targeting persons reasonably believed to be located outside the United States; and

b. prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States….

I do not expect to persuade you on all or perhaps any of these points. I do hope you will acknowledge that journalism, not advocacy, is what you have been reading in The Washington Post.

Maybe it’s just me, but I don’t think anyone can read that without wondering whether Bart Gellman has slipped from journalist to advocate.  And from there it’s a short step to wondering whether he suppressed the guidelines in his earlier story because they didn’t fit his preferred narrative. Somehow they were not worth disclosing when they might have blunted privacy concerns but they had to be disclosed once “they seem[ed] to demonstrate that the president’s words are untrue.” Put another way, it seemed better to hold the truth back until it could be used to sandbag the adversary. That’s the kind of tactic that made Andrew Breitbart such a provocative and entertaining newsmaker, but I wouldn’t say it made him a journalist.

So I pressed Bart Gellman for some other explanation he might have for withholding the documents; I offered several that I thought might be less damning:

Perhaps you wanted [time] to evaluate official arguments that releasing the documents would cause harm to national security. Perhaps they were a kind of bargaining chip for an exclusive interview on minimization generally. Perhaps stretching out the release of the documents adds to their public “punch” and the overall impact of the stories. Perhaps you have an arrangement with Glenn Greenwald or Laura Poitras or Edward Snowden that requires negotiation over what can be released when.

But Bart was not willing to explain himself further:

It is good to avoid falling in love with one explanation that connects the dots, as your considerable intelligence experience no doubt taught you. You did not address alternative explanations in your original post, and I’d encourage you to do that. I tried to suggest the room for them, albeit opaquely, in my opening lines. I would like to say more, but have good reasons not to do that. In any case, I believe the stories on their own permit a fair assessment of whether I’m advancing an ideological agenda. The additional response I sent you adds useful context, I think, even if I’m unable to address your question directly.

Summary?  It’s highly likely that the Washington Post had the minimization guidelines when it ran the first story, as Greenwald claims.  The decision to withhold them was quite deliberate.  And Glenn Greenwald is closer to epitomizing the culture of modern journalism than I thought — though that’s not something I think journalism should be bragging about.  And, finally, it’s a shame that Andrew Breitbart didn’t live long enough to bask in such a sincere form of flattery from such unlikely sources.

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