All the Torture’s that Fit to Call Torture Now Includes US Torture

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On Monday in Salon, I said (in part),

[T]he recent history of America’s torture also damns the conventions of journalism that strive so hard for some kind of fake balance that still prefers a term that obscures the truth over one that accurately describes it.

Don’t get me wrong: We owe our knowledge of torture to some of the best journalists in the business, people like Jane Mayer and Dana Priest and Adam Goldman.

But as soon as coverage moved beyond that superb investigative work to coverage of the politics of torture — to the journalists who should hold those who implemented torture accountable — we remain mired in obscurantist language.

Which brings us to the torture report result the press might take most seriously.

According to McClatchy, in addition to misleading Congress, DOJ and the White House, the torture report concludes that the CIA also fed misleading information to the press: “[T]he news media were manipulated with leaks that tended to blunt criticism of the agency.”

Part of this manipulation (one the White House participated in) involved convincing the press to call torture something else, something it’s not. Enhanced interrogation. Harsh treatment.

Anything but torture.

For 10 years, journalists have willingly perpetuated this linguistic absurdity, even as more evidence came out proving the CIA used torture and not some fluffed up interrogation process, even as more and more neutral arbiters judged our torture torture.

The Senate Intelligence Committee has spent five years trying to understand and come to grips with the torture done in our name. Isn’t it time for journalists to do the same?

While I don’t flatter myself that my column was needed at this point — or even would have been influential –the NYT did just announce that it would henceforth call torture, including US torture, torture.

Over the past few months, reporters and editors of The Times have debated a subject that has come up regularly ever since the world learned of the C.I.A.’s brutal questioning of terrorism suspects: whether to call the practices torture.

[snip]

Given [changes that have taken place in recent years, including with the legal status of torture], reporters urged that The Times recalibrate its language. I agreed. So from now on, The Times will use the word “torture” to describe incidents in which we know for sure that interrogators inflicted pain on a prisoner in an effort to get information.

I may have more to say about the substance of the statement down the road. But for now two things are important: The most prestigious newspaper in the country has formally given up Bush’s euphemism. And this change came from the reporters.

May other outlets follow the Gray Lady’s lead.

Government Continues to Freak Out about the Intercept, Raise Its Profile

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The Intercept had a story on the content of the government’s terrorist watchlist yesterday — I’ll have more to say about the content later. But the government — largely National Counterterrorism Center — response to it shows the government getting increasingly unhinged about the Intercept and other journalistic models based on leaked documents.

First, in an apparent effort to shift the focus away from the 200,000 people on the terrorist watchlist with no tie to a known terrorist organization and to the fact that the watchlist has ballooned in response to the UndieBomb attempt in December 2009, NCTC gave the scoop to AP’s Eileen Sullivan.

The Associated Press dropped a significant scoop on Tuesday afternoon, reporting that in the last several years the U.S. government’s terrorism watch list has doubled.

A few minutes after the AP story, then consisting of three paragraphs, was posted at 12:32 p.m., The Intercept published a much more comprehensive article.

NCTC even admitted they spoiled the scoop after the Intercept’s John Cook called them on it.

After the AP story ran, The Intercept requested a conference call with the National Counterterrorism Center. A source with knowledge of the call said that the government agency admitted having fed the story to the AP, but didn’t think the reporter would publish before The Intercept did. “That was our bad,” the official said.

Asked by The Intercept editor John Cook if it was the government’s policy to feed one outlet’s scoop to a friendlier outlet, a silence ensued, followed by the explanation: “We had invested some quality time with Eileen,” referring to AP reporter Eileen Sullivan, who the official added had been out to visit the NCTC.

“After seeing you had the docs, and the fact we had been working with Eileen, we did feel compelled to give her a heads up,” the official said, according to the source. “We thought she would publish after you.”

This is bone-headed on several levels. In the future, all government agencies will get less time to comment on the Intercept’s upcoming stories, which — given how much classified information they’re sitting on — could really hurt their interests.

And NCTC burned Sullivan badly; she’s a decent reporter, but NCTC has made it clear they consider her their reporter. (NSA has done this similarly but less obviously with some superb beat reporters, leaking them partial stories then exploiting those partial stories to undercut real attention on the documents.)

Then, the government gave CNN’s Evan Perez an “Exclusive” to trumpet their determination that there’s probably someone else leaking documents to the Intercept.

The federal government has concluded there’s a new leaker exposing national security documents in the aftermath of surveillance disclosures by former NSA contractor Edward Snowden, U.S. officials tell CNN.

Proof of the newest leak comes from national security documents that formed the basis of a news story published Tuesday by the Intercept, the news site launched by Glenn Greenwald, who also published Snowden’s leaks.

The Intercept article focuses on the growth in U.S. government databases of known or suspected terrorist names during the Obama administration.

The article cites documents prepared by the National Counterterrorism Center dated August 2013, which is after Snowden left the United States to avoid criminal charges.

Greenwald has suggested there was another leaker. In July, he said on Twitter “it seems clear at this point” that there was another.

Government officials have been investigating to find out that identity.

Note, there’s almost certainly an error here, presumably on the part of the government. There appears to be a second NSA leaker, leaking to Jacob Appelbaum. But there’s also the person who gave the Intercept the NCTC documents, which is almost certainly an entirely different person.

Of course, there’s not just one new leaker. In DC there are new leakers everyday, even people who share classified documents. What Perez’ sources mean is OMIGOD there’s another person giving That Outlet documents.

The government has chosen to make it a Big Story that at least one more person has decided to leak the Intercept documents.

Ultimately, I think the Known and Suspected Terrorist documents the Intercept got are badly overclassified and also should be released in whole to permit debate and oversight. The documents show some good things (and some areas where NCTC has implemented questionable demands from Congress such as that they biometric everything). They also show the system lacks controls. Absent real discussion, it appears NCTC and the rest of this bureaucracy hasn’t gotten the right balance on watchlisting.

But rather than engaging in that debate, the government first tried to pre-empt it, burning Sullivan in the process, and then screaming so loud as to raise the value of such leaks.

Dumb.

You’re Doing Counter-Propaganda Wrong, Hand-Picked Journos Edition

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I’ve been so buried in Netroots Nation and related issues I’ve only followed the top-line coverage of the MH17 shoot-down. I think the version the Administration released yesterday — that Ukrainian rebels shot down the airliner by mistake — is the most plausible explanation, though I’m aware of questions about that story.

All that said, there’s something about yesterday’s dog-and-pony show offered at the Office of Director of National Intelligence that seriously discredits the US story.

As the WSJ account of it makes clear, the reporters brought in for that dog-and-pony were explicitly told the dog-and-pony was being held to “not let[] a Russian narrative get out there.”

The Russian government is making a “full-court press” to spread a Russian version of events that try to pin the shoot-down on the Ukrainians, which is “not plausible to us,” one senior intelligence official said.

A key goal of Tuesday’s presentation, said one senior intelligence official was “not letting a Russian narrative get out there,” said one senior U.S. intelligence official.

(Apparently this senior intelligence official is not honest enough to admit both sides are already in a game of full court pressing — and John Kerry has already gotten beyond what the government released yesterday.)

Here’s the thing. While the Russians have not offered as much proprietary intelligence as the US offered yesterday, the presentation this dog-and-pony show is meant to rebut involve their Ministry of Defense providing a televised briefing on their questions about the event.

By contrast, noted liar James Clapper’s office invited hand-picked journalists in, and swore them to silence about who actually gave the briefing, and only afterwards released a transcript and other materials on the briefing. Spencer Ackerman was among the obvious journalists who should have been but was not invited.

Some of the evidence provided by US intelligence – whose fiscal 2013 budget was $68bn – included Facebook posts. “After it became evident that the plane was a civilian airliner, separatists deleted social media posts boasting about shooting down a plane and possessing a Buk (SA-11) surface-to-air missile system,” a senior intelligence official said in the briefing, held on condition of anonymity. The Guardian was not invited to the briefing, a transcription of which was later made available.

Look, if the US government has a case, they can release it publicly. But what they appear to be doing instead is creating their own official press corps and presenting their case there.

That’s especially true given that something else said at the briefing undermines the US case against the rebels.

They noted that it can be difficult to track the transportation of weapons because they are often moved at night, and the Russians have provided the separatists with types of weapons that the Ukrainians also have in order to maintain “plausible deniability.”

If the Russians have gone to some length to hide their role in arming rebels, why would they also give them a weapon that would draw so much attention (the Ukrainian government has them as well, but they haven’t used them)? (Though I actually think the point is they have been fired, but weren’t considered so fancy until they took down a civilian jet.)

I suspect at this point both sides are hiding interesting details they know. But the US has the more plausible case, thus far. So why are they unwilling to present their case publicly?

DOJ’s Cake-Eating on Journalists Will Build Support for Faulty Journalist Shield

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As many people have reported, SCOTUS today declined to take Jim Risen’s appeal of the Fourth Circuit’s decision requiring him to testify in Jeff Sterling’s trial. As I noted at the time of the decision, this effectively guts any reporter’s privilege in the circuit that matters: the Fourth Circuit governs the CIA and JSOC.

Now, Risen’s team is calling on DOJ to uphold Eric Holder’s promise of last week, that no journalist engaged in journalism will be prosecuted on his watch.

“As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.”

As Kevin Gosztola has noted on Twitter, however, there’s a difference between prosecution and jailing under contempt. So that promise is likely meaningless.

And not only does that put Holder where he wants to be: with the courts on his side, exercising the discretion to jail a journalist or not as he can convince the court.

Furthermore, consider how it creates pressure for Chuck Schumer’s (Administration-backed) badly flawed press shield bill. The bill wouldn’t cover me. It wouldn’t cover Glenn Greenwald. And it would leave James Risen precisely where he is now, subject to a judges ruling on the significance of the information he has.

There was already a lot of support for this bill. But now that the Executive Branch has gained all the leverage where it matters, I imagine there’ll be a greater push to Do Something — even if that just codifies an official press that gets privilege.

On the same day NYT’s Adam Liptak reported this decision, he also did a profile of SCOTUSBlog’s Thomas Goldstein, who — because he doesn’t fit the official model of journalist, in spite of the number of people who rely on his journalism — still can’t get press SCOTUS press credentials. In spite of near universal acknowledgment of the important role SCOTUSBlog plays, the traditional press hasn’t budged, which has helped SCOTUS punt on the issue too.

The closer the press gets to official sanction, the worse the reporting we’ll get.

Announcement

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This is just a quick announcement that I have ended my affiliation with First Look/The Intercept. My departure was voluntary and amicable.

To anticipate questions some may ask, my departure from The Intercept doesn’t relate to anything I wrote or didn’t write about Ukraine. It did not relate to the downtime The Intercept just took (and seems to be coming out of). The reasons for my departure predate both of those things, to January.

I’ll have more to say–not about The Intercept, per se, but about things I’ve learned about my own journalism over the last 7 months, as the Edward Snowden story played out and the Intercept discussed hiring me–at some later point, after some reflection.

Things here will remain the same.

We will, however, be doing a fundraising campaign next week (or you can beat the rush by donating today!). Until such time as a billionaire wants to support the work we do here, we will rely on readers to pay the bills.

Thanks, as always, for making all that possible!

A 2nd Amendment Right to Bear Drones

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The FAA is cranky that a journalist took footage of the tornado in Arkansas the other day with a drone.

That footage, taken by storm chaser and photographer Brian Emfinger on Sunday, is now being investigated by federal aviation officials, after a local TV news channel used it as part of its disaster coverage. Mr. Emfinger, a Little Rock-based photojournalist, could be fined $10,000 if the government decides to pursue him for illegal drone-flying.

The Federal Aviation Administration (FAA) insists that such “drone journalism” isn’t legal because it breaks rules against commercial use of unmanned aircraft. Nonetheless, some drone experts say the footage of post-tornado Mayflower heralds “the dawn of the drone journalism age” – a potentially vexing frontier that pits curious citizens against a government with qualms about the spying potential of drones.

CSM uses it to lay out the tensions currently surrounding the FAA’s role, as if this is just a question of FAA’s efforts to slowly develop a legal regime for drones.

But it’s not just that. One of the examples CSM cites deals with a dispute with local cops, who thought locally controlled drone photos of an accident site might affect the site.

And while the article treats a commercial missing persons use of drones, it doesn’t consider other uses, like non-commercial monitoring of environmental sites like industrial farm CAFOs (the latter of which finally got Chuck Grassley opposed to drones because it threatens his big Ag constituents). It also doesn’t mention earlier efforts to obtain independent (whether commercial or not) surveillance of big disasters, things like the BP catastrophe.

Some of what we’re seeing is FAA’s efforts to deal with real safety and privacy and overall legal regime concerns.

But it’s also a question of who gets to wield a certain kind of vision, one currently monopolized by the state.

I’m not a fan of the proliferation of drones generally, because I think that kind of vision should be very limited. But there are also many data points out there to suggest that drones will end up being a sharply circumscribed privilege, limited to only those the state thinks should have a certain kind of vision on society.

ISI Goes After Geo’s Broadcast License in Response to Accusations on Mir’s Shooting

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On Saturday, Hamid Mir, the most popular news anchor on Geo, Pakistan’s largest television news outlet, survived an assassination attempt. He remains hospitalized with at least six bullet wounds. Controversy has swirled since the attack, with Mir’s brother Amir Mir, also a journalist, accusing Pakistan’s ISI of being behind the attack. ISI has responded by approaching the broadcast regulatory authority in Pakistan, demanding that Geo’s license be revoked.

The Committee to Protect Journalists has denounced the move by the ISI:

The Committee to Protect Journalists is greatly concerned by actions brought by Pakistan’s Inter Services Intelligence Directorate (ISI) against Geo Television today. In its complaint to the Pakistan Electronic Media Regulatory Authority, the ISI accused Geo’s parent company, the Independent Media Corporation, of conducting a “false and scandalous campaign undermining the integrity and tarnishing the image of state institution (ISI) and its officers.”

The media regulator has the authority to shut down broadcasters based on such complaints, and has done so under previous administrations of Pakistan.

“We call on the Pakistan Electronic Media Regulatory Authority not to act on this spurious complaint, and we call on Pakistan’s security services to recognize the critical role of the media and exercise tolerance and maturity,” said Bob Dietz, CPJ’s Asia program coordinator. “The ISI is free to rebut allegations in the media but should not try to censor coverage.”

Declan Walsh covered the move by the ISI in the New York Times on Tuesday:

Mr. Mir survived the attack and is being treated for gunshot wounds to the chest and shoulder. But as he was still receiving emergency treatment, Geo prominently broadcast heated accusations from Mr. Mir’s brother, the journalist Amir Mir, who accused the ISI of being responsible for the attack.

During extended commentary, Geo also repeatedly broadcast a photograph of the ISI chief, Lt. Gen. Zahir ul-Islam, while a senior journalist employed by the station called for the general to resign.

Hamid Mir, whose pugnacious style has frequently stirred up controversy, has been a fierce critic of the military, and in February he privately told station managers that he had received a threat from ISI operatives about his work, according to the station. In November 2012, a bomb was found strapped to the underside of his car outside his home in Islamabad.

/snip/

On Tuesday, evidently, the generals decided they had had enough criticism.

In a four-page letter to the state-run Pakistan Electronic Media Regulatory Authority, the Defense Ministry not only asked for Geo’s broadcasting license to be revoked, but called for the body to initiate criminal proceedings against Geo editors and management.

This had to be a difficult story for Walsh to cover, considering that he was mysteriously kicked out of Pakistan last May, just as elections were taking place. Walsh also this morning tweeted a link to an article in the Guardian that contains an explosive quote from the president of Geo News:

Geo’s president – a former newspaper editor named Imran Aslam – became wistful when defending his channel’s coverage after the assassination attempt on Mir. “There was a time that if they didn’t like what you wrote they censored you. They cut out a word or a line. If they got really angry they got your editor fired. Now they just shoot you.” A bullet in the head is the new form of censorship in Pakistan.

Interestingly, just after the bomb was defused on Mir’s car in November of 2012, coverage suggested that it may have been planted by the TTP, especially since Mir had been covering the TTP’s shooting of Malala Yousafzai. In an AP story carried in the Washington Post, we have this on Mir’s more recent reporting:

In recent weeks, Mir’s show gave prominent coverage to a group campaigning against the disappearances and torture of insurgents and their supporters in southwestern Baluchistan province — allegedly at the hands of ISI.

Geo is reporting that Hamid Mir is expected to make a public statement later today. I will keep an eye out for it.

Update: The Express Tribune just posted on Mir’s statement:

In a statement read out by his brother on Thursday, senior journalist Hamid Mir said that he faced threats from both state and non-state actors, Geo News reported.

On Saturday, April 21, unknown assailants shot at Mir in Karachi, critically injuring him.

Through his first official statement since the attack, Mir claimed that he had recently been approached by intelligence officers who informed him that he was on a hit-list.

He said he is making this statement despite the pressure he is facing from various quarters.

The ISI was upset with me for my coverage of Mama Qadir’s Long March, he added.

I forwarded the numbers from which I received death threats to the police, the statements reads, but the police did not do anything about it.

DOJ Will Continue to Use NSLs to Get Journalist Contacts

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For years, I have been harping on the language in FBI’s Domestic Investigations and Operations Guide that permits DOJ to get journalists’ contact information using NSLs because — given that they are not warrants — they need no Attorney General review.

A heavily-redacted section (PDF 166) suggests that in investigations with a national security nexus (so international terrorism or espionage, as many leak cases have been treated) DOJ need not comply with existing restrictions requiring Attorney General approval before getting the phone records of a journalist. The reason? Because NSLs aren’t subpoenas, and that restriction only applies to subpoenas.

Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]

So DOJ can use NSLs–with no court oversight–to get journalists’ call (and email) records rather than actually getting a subpoena.

The section includes four different approval requirement scenarios for issuing such NSLs, almost all of which are redacted. Though one only partly redacted passage makes it clear there are some circumstances where the approval process is the same as for anyone else DOJ wants to get an NSL on:

If the NSL is seeking telephone toll records of an individual who is a member of the news media or news organization [2 lines redacted] there are no additional approval requirements other than those set out in DIOG Section 18.6.6.1.3 [half line redacted]

And the section on NSL use (see PDF 100) makes it clear that a long list of people can approve such NSLs:

  • Deputy Director
  • Executive Assistant Director
  • Associate EAD for the National Security Branch
  • Assistant Directors and all DADs for CT/CD/Cyber
  • General Counsel
  • Deputy General Counsel for the National Security Law Branch
  • Assistant Directors in Charge in NY, Washington Field Office, and LA
  • All Special Agents in Charge

In other words, while DOJ does seem to offer members of the news media–which is itself a somewhat limited group–some protection from subpoena, it also seems to include loopholes for precisely the kinds of cases, like leaks, where source protection is so important.

See also this post, where I tried to write it really plainly.

Then, last year, after it got caught obtaining the call records of some Pulitzer Prize winners, DOJ pretended to roll out new protections for journalists.

Charlie Savage reports that DOJ has just rolled out the final version of those great new protections.

Here’s the last paragraph of his report on the “new guidelines.”

The rules cover grand jury subpoenas used in criminal investigations. They exempt wiretap and search warrants obtained under the Foreign Intelligence Surveillance Act and “national security letters,” a kind of administrative subpoena used to obtain records about communications in terrorism and counterespionage investigations.

Which makes these “new guidelines” worth approximately shit in any leak — that is, counterintelligence — investigation.

1st Amendment Justice Delayed is Justice Denied for Col. Morris Davis

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Bg32jNgCYAApToACol. Morris Davis is, at least for my money, an American hero. He served and fought not only for his country, but for the Constitution he swore to protect. The subject of what happened to him at the hands of the very government he defended deserves a much longer, and deeper, dive than I have time for in this post. We will likely come back for that at a later date as it seems as if the legal case Col. Davis brought to correct the wrongs done to him will likely go on forever.

And the going on forever part is the subject of this post. Col. Davis was scheduled to have a hearing in United States District Court in Washington DC tomorrow in front of Judge Reggie Walton. But the hearing was postponed. And that is the problem, this is the FOURTEENTH (14th) TIME hearing on Col. Davis’ case has been delayed. One delay was due to a conflict on Judge Walton’s part, and one because the offices of Davis’ attorneys at the ACLU in New York were substantially damaged by Hurricane Sandy. Other than that, the delay has been at the hands of an intransigent and obstreperous DOJ. If the actions of the DOJ in relation to Col. Davis are not “bad faith”, it is hard to imagine what the term stands for.

Now, to be fair, it appears the latest delay was at the unilateral hand of the court, as yesterday’s minute entry order reads:

In light of the fact that potentially dispositive motions remain pending, it is hereby ORDERED that the status hearing currently scheduled for Friday, February 21, at 9:15 a.m. is CONTINUED to a date and time to be determined by the Clerk.

The problem with that is that the “dispositive motions” the court speaks of as being “pending” have been “pending” for a VERY long time, since July of last year. And the case itself has been going on since the complaint was filed on January 8, 2010.

Why is it taking so long you ask? Because of the aforementioned bad faith and obstreperousness of the Department of Justice, that’s why. To get an idea of just what is going on here, a little background is in order. Peter Van Buren gives a good, and relatively brief synopsis:

Morris Davis is not some dour civil servant, and for most of his career, unlikely to have been a guest at the Playboy Mansion. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis stated he would not use evidence obtained through torture. When a torture advocate was named his boss, Davis quit rather than face the inevitable order to reverse his position.

Morris Davis then got fired from his research job at the Library of Congress for writing an article in the Wall Street Journal about the evils of justice perverted at Guantanamo, and a similar letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court ruled against the Obama Administration’s objections that the suit could go forward (You can read more about Davis’ struggle.)

Moving “forward” is however a somewhat awkward term to use in regards to this case. In the past two years, forward has meant very little in terms of actual justice done.

Yes, you read that right. Col. Davis was fired from the job he truly loved at the Congressional Research Service because he, on his own time as a private citizen, exercised his First Amendment right to speak. As one of Davis’ pleadings puts it:

Col. Davis was unconstitutionally removed from his position at the Library of Congress’ Congressional Research Service for writing opinion pieces in the Wall Street Journal and the Washington Post expressing his nonpartisan, personal views on the failures of the American military commissions established to try detainees at Guantánamo Bay, Cuba. His speech lies at the very core of the First Amendment and exemplifies the kind of speech that federal courts have been most vigilant in protecting from government retaliation.

The full pleading that quote came from, Col. Davis’ response to the government’s motion for summary judgment (one of the “pending dispositive motions”) can be found here and is a good read if you are interested in more background.

That is exactly what happened and what is at stake. And you do not have to take my word for it, Judge Walton thinks it is a solid and valid claim too. Here is language from Judge Walton in an order in late January 2010, not long after the case was filed:

The Court is satisfied that the plaintiff has established, at least based on the record before the Court at this time, that the likelihood of success on the merits and public policy prongs of the preliminary injunction standard weigh in his favor. Essentially, the record before the Court suggests that the plaintiff was terminated immediately after two specific opinion editorials he authored were published in national newspapers. Regardless of the defendants’ contention to the contrary, it appears that the content of the plaintiff’s published opinions was one of the reasons, if not the primary reason, he was fired, i.e., because the plaintiff took a position on the prosecution of detainees being housed at the United States military’s Guantánamo Bay facility which the Congressional Research Service felt would call into question its impartially as to any policy recommendation it would make and any research it would conduct on that issue. This conclusion is supported by the fact that the opinion articles were specifically referenced in the plaintiff’s termination letter, and also the timing of the letter, which was issued only several days after his writings were published. The plaintiff’s likelihood of success position therefore is well-founded, at least with respect to the record the Court now has before it. And as to the public interest prong, it cannot be questioned that government employees retain First Amendment rights. (citations omitted)

So, there is really no question but that protected First amendment rights were involved, and that Col. Davis was wrongfully fired for exercising them. Makes you wonder why the DOJ would string him out and fight so hard in a case that is only about the rights and not even about the money damages he suffered as a result (that would have to be litigated in a separate action).

As the graphic at the top questions, why is the DOJ willing to give free speech rights to a terrorist at Guantanamo and not to Col. Morris Davis? Bad faith is the answer. Complete, scandalous, bad faith.

Former Professional Journalist Suggests NYT Shouldn’t Pay Its Journalists

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I’m working on a more substantive response to this Ben Wittes post claiming that the NYT’s latest Snowden story doesn’t mean the NSA spies on lawyers.

But I wanted to note how it begins.

Unless the public is really tiring of matters Snowden, the New York Times’s latest is going to stir up the hornet’s nest. “Spying by N.S.A. Ally Entangled U.S. Law Firm,” blares the headline of the story by reporter James Risen and freelancer Laura Poitras—from whom the Times (which insists it never pays for information) sometimes procures Snowden-leaked documents and to whom it gives a byline when it does so. [my emphasis]

The apparent subtext here is that the NYT is paying Laura Poitras not to do journalism on a story she has covered in depth for the last 8 months, but instead for access to documents in her possession (or to use Mike Rogers’ formulation, Poitras is fencing stolen property).

The comment is odd not just because Wittes has not (as far as I know) complained that the NYT also got (or may have in this case — I frankly don’t claim to know these arrangements) Snowden documents directly from the Guardian in a necessary attempt to bypass the UK’s crackdown on press freedom.

Odder still, according to Wittes’ Brookings bio, he worked as a professional journalist for at least a decade, both as a WaPo staffer and as an independent contributor.

Between 1997 and 2006, he served as an editorial writer for The Washington Post specializing in legal affairs. Before joining the editorial page staff of The Washington Post, Wittes covered the Justice Department and federal regulatory agencies as a reporter and news editor at Legal Times. His writing has also appeared in a wide range of journals and magazines including The Atlantic, Slate, The New Republic, The Wilson Quarterly, The Weekly Standard, Policy Review, and First Things.

Therefore I assume he is familiar with the tradition in journalism that when someone reports — even (especially) for a major newspaper as a freelancer — one gets paid.

Except he seems to want to make an exception just in this one case so as to insinuate certain things about Poitras’ reporting.

I do hope all of Wittes’ reporter friends remind him that their profession is still … a profession, and that equating professional journalism with crime sort of puts a damper on the whole freedom of the press thing, not to mention their claim that they should be compensated for their labor.

Disclosure: Obviously, with my affiliation with First Look Media, I do have a tie with Poitras (though not with this story). As an EW post, however, this post has no tie to First Look, and I have talked to neither Poitras nor anyone else at First Look before writing it.

Update: Wittes explains himself at length here (though the *@^$&*# hackers have brought Lawfare down again). It seems Wittes is nostalgic for the time when newspapers and the government had such a cozy relationship the NYT could lie us into catastrophic war in the service of the government.

I confess that I’m troubled by the power dynamics at work—for reasons that I’m sure will not endear me to my Twitter critics: I believe in institutional media. I believe in editors. And while I also deeply believe in the proliferation of voices that new media has enabled, I don’t like it that Greenwald, Gellman, and Poitras have such enormous leverage against big media organizations which I expect to make responsible publishing decisions. Put simply, I am uncomfortable with the unaccountable power that this arrangement gives people like Poitras over organizations like the New York Times.