Reporter’s advocacy journalism meets deafening silence

The press doesn’t cover nuance very well, especially when it is covering itself – or when a reporter is more of an advocate than an impartial observer.

The recent NSA stories and those about leaks of top-secret information are good examples. Both are important stories raising serious questions about the right balance between liberty and security. But the failure to provide nuanced, balanced information has left Americans with a distorted idea of what is at stake.

Glenn Greenwald of the Guardian – who wrote the stories about the National Security Agency’s massive collection of telephone calling data and access to Internet data – makes no pretense of objectivity. In fact, he thinks objectivity is a pretense. Working with Greenwald was award-winning filmmaker Laura Poitras, who was the contact to the leaker, Edward Snowden. Poitras is herself a vocal critic of the war on terrorism.

Greenwald has made his views explicit. He said: “There is a massive apparatus within the U.S. government that, with complete secrecy, has been building this enormous structure that has only one goal, and that is to destroy privacy and anonymity, not just in the United States but around the world. That is not hyperbole. That is their objective.”

Greenwald’s story on the PRISM program’s access to Internet data appeared to contain a key overstatement. He said that NSA “is able to reach directly into the servers of the participating companies and obtain both stored communications as well as perform real-time collection on targeted users.” The denials of the Internet companies didn’t slow Greenwald.
In the end, it seems the much-ridiculed denials of the service providers may have been accurate. There is no proof online service firms are giving the government fully automated data without government requests having been reviewed by company lawyers.

Greenwald further overstated the facts on the “Morning Joe” program on MSNBC, when he called the NSC program a “rampant abuse” involving NSA “tapping into their (Americans’) online chats, their online calls of every sort.” He added that the government’s objective was to “enable the NSA to monitor every single conversation and every single form of human behavior anywhere in the world.”

This is the exaggerated statement of an advocate, not the careful statement of a professional reporter.
Greenwald stood by his story in a defensive blog on June 14 (http://www.guardian.co.uk/commentisfree/2013/jun/14/nsa-partisanship-propaganda-prism), acknowledging he has “strong, candidly acknowledged opinions on surveillance policies.”
Greenwald also maintained that “the claim that current NSA spying is legal is dubious in the extreme.” In fact, there is a strong case to be made that the NSA programs are legal, as Congress authorized them and the Foreign Intelligence Surveillance Court approved the government’s requests to collect data.

Yet the silence in the journalistic community about Greenwald’s advocacy journalism, and his exaggerations in print and in his TV appearances, was deafening in the weeks immediately after the story broke. It is true that the Guardian doesn’t hold itself to the professional standards of objectivity that the professional American press embraces. But isn’t there a responsibility on the part of the American press to alert readers that they are reading the work of an advocate?

James Rainey in the Los Angeles Times was one of the first to raise the issue of Greenwald’s advocacy role and that was June 18, several weeks into the story. GJR raised the issue in its enewsletter published June 21 and David Gregory fully joined the discussion confronting Greenwald on NBC’s Meet the Press show two days later.

But Margaret Sullivan, the New York Times’ Public Editor, was less worried about Greenwald’s advocacy than the dismissive way that the Times referred to him as a “blogger.” To Sullivan, a journalist is anyone “who understands, at a cellular level, and doesn’t shy away from, the adversarial relationship between government and press.” To Sullivan, Greenwald, the advocate, seems to have this somewhat mystical “cellular level” of understanding.

Greenwald certainly is a journalist and he should not be prosecuted as some have suggested. But the press should have pointed out that he is not abiding by the news reporter’s professional ethic of impartiality – the kind of impartiality one can expect on the front page of the Times, for example.

In short, the programs Greenwald disclosed probably are legal and are not as invasive as he claimed. Nor is it clear that the disclosure is as historic as Greenwald maintains.

A USA Today story from 2006 disclosed most of the details of the telephone data collection. And the government has disclosed that it only sought warrants to analyze the telephone data in about 300 cases last year. Overall, the government claims the NSA programs have helped deter 50 terrorist attacks worldwide.

The press’ shortcomings aren’t limited to one side of the NSA debate. The portrayal of leaker Snowden as a high school dropout with a pole-dancing girlfriend was absurd. Jack Shafer in Reuters made a good point about the demonization of whistleblowers (http://blogs.reuters.com/jackshafer/2013/06/18/snowden-versus-the-dragons/), although the stories about Snowden aren’t in the same league as those planted by President Nixon’s men about Daniel Ellsberg of Pentagon Papers fame.

The press similarly has left out perspective and nuance in its coverage of the subpoenas of Associated Press reporters’ phone records. The government subpoenaed the records to track down the person who leaked information that reportedly jeopardized a double agent who was trying to locate the leading al-Qaida bomb maker.

Readers might be forgiven if they came away from press accounts thinking that there is a First Amendment right of a government official to leak classified information, that there was a First Amendment right for a journalist to protect a confidential source and that the Justice Department investigation was singling out the press for tough treatment. None of those conclusions would be correct.

Actually, attorney general guidelines put the press in a favored position. In the run-of-the-mill case, prosecutors could subpoena phone and business records early in an investigation. The AG guidelines require prosecutors to first try to obtain the information from other sources, which prosecutors said they tried to do in the AP case by interviewing 500 persons and reviewing tens of thousands of documents before subpoenaing the reporters’ records.

Another fact missing from most press accounts is that there is no First Amendment right of a government official to leak classified information. Rather than a right, it is a crime. There are some protections for whistleblowers, but to be a whistleblower one has to be disclosing illegality or rampant abuse. That certainly wasn’t true in the AP case.

Given the probable legality of the NSA data collection program, Snowden likely cannot claim whistleblower protection. Any pretense that he could was blown away by his disclosure of national security secrets involving China and dalliance with Russia.

Nor is there a First Amendment right of journalists to protect their confidential sources, even though most journalists wish there were.

In lieu of a First Amendment right, most states have recognized a statutory or court-created privilege. But there is no federal shield law to protect reporters or confidential sources in federal leak investigations or other federal grand jury investigations.

The subpoenas of AP reporters’ telephone and travel records have led to a renewed call to pass a federal shield law. One would hardly know from press reports, however, that such a law would not apply in most national security cases, such as the AP leak. Nor would it have applied in the NSA case if Snowden had tried to remain under cover.

A number of journalism organizations, including the Society for Professional Journalists and the Association for Education in Journalism and Mass Communication (AEJMC), have endorsed a federal shield law without qualification, despite these limitations.

There is almost no consideration or press coverage of the limitations or the dangers of a federal shield law. For example, does the press want to let Congress decide who counts as a journalist? And does the press want to approach Congress as a supplicant, knowing that the same Congress that gives can also take away?

A journalistic cliché that has littered all of the coverage of these national security stories is that the government’s NSA surveillance and subpoenas lack “transparency.” Who would think intelligence operations were supposed to be transparent?

One saving grace of the coverage of the NSA and AP stories is that they have called the public’s attention to important issues that need to be fully debated – issues that involve the intersection of privacy, security, liberty and a free press. Even though the NSA programs and AP subpoenas are almost certainly legal, they are incredibly broad and may be evidence that we are too willing to surrender freedom for security.

But for the Congress and the people to make wise decisions, they need a source of news that is reliable and nuanced. They haven’t gotten it from the biased and shallow press coverage of these important stories