Obama’s crackdown on leakers damages constitutional protections, activists say
By VERA BERGENGRUEN | McClatchy Washington Bureau | Published: July 29, 2014
WASHINGTON — Recent revelations of the U.S. government’s pervasive surveillance program and its crackdown on leaks are making it increasingly difficult for American journalists and lawyers to do their jobs, the advocacy group Human Rights Watch and the American Civil Liberties Union said in a report released Monday.
It’s becoming impossible to ensure privacy for sources and clients by protecting their information, the report found. Government officials not only are substantially less willing to be in contact with journalists than they were a few years ago, but they also are even refusing to discuss unclassified matters or personal opinions.
“They are afraid of losing their security clearances, being fired or even being prosecuted,” Alex Sinha, the author of the report and a fellow at Human Rights Watch, said in a news conference at the National Press Club.
Former National Security Agency contractor Edward Snowden shed light on the scale of the government’s surveillance programs last year by releasing secret documents that detailed the collection of email and telephone records of millions of Americans and foreigners.
The feeling of being under inescapable scrutiny is damaging the country’s core values of freedom of the press and the right to counsel, protected by the U.S. Constitution and international human rights law, the report says.
“Even if having more of this information in the government’s hands makes us safer, we want to know what we are trading for that safety,” Sinha said.
The growing feeling of uncertainty is tied to an increase in leak prosecutions as well as the government’s implementation of programs such as Insider Threat, which aims to discourage federal officials from sharing information with anyone outside the government.
Journalists who cover national security feel forced to come up with complicated schemes to communicate with their sources and one another, fearing that all email is being read, phone calls are being tracked and transactions are being monitored. Some reporters rely on advanced encryption software, which can often hide the content of the conversation but not the identities of those involved.
The report describes one journalist deliberately creating a misleading electronic trail by calling a large number of possible sources before a story comes out to disguise who the information came from. Another reporter says he books “fake” travel for places he never plans to visit.
Others go for the opposite strategy by relying on technology as little as possible in order not to leave a trail of digital crumbs. They leave their phones at home and spend a lot more time, money and energy to meet sources in person.
One journalist said his productivity had been cut in half because of his elaborate efforts to protect his sources, Sinha said.
“I don’t want the government to force me to act like a spy. I’m not a spy, I’m a journalist,” Washington Post reporter Adam Goldman says in the report.
Lawyers quoted in the report echo the same frustration in their efforts to protect attorney-client privilege.
“I’ll be damned if I have to start acting like a drug dealer in order to protect my client’s confidentiality,” Tom Durkin, a leading national security defense attorney, told the report’s writers in an interview.
Lawyers, like journalists, are relying more on burner phones, disposable cellphones with few links to their owners. Attorneys are increasingly reluctant to take on certain cases that might incur surveillance, the report found.
Government officials interviewed for the report denied that surveillance programs are having a chilling effect on any legitimate work done by journalists and lawyers.
“Journalists who suggest that their lives are at risk and they therefore have to take precautions to avoid being assassinated by the CIA, or journalists who suggest that they have to be concerned that their conversations are going to be monitored because of their journalism, that’s just a fantasy,” says an unnamed senior intelligence official who’s quoted in the report.
Some surveillance is designed to have a chilling effect for legitimate reasons, officials said.
“Leaking is against the law. Good. I want criminals to be deterred,” the report quotes Bob Deitz, who served as general counsel for the NSA from 1998 to 2006, as saying.
There’s no indication that whistleblowers are any more deterred than they used to be, say officials quoted in the report. In fact, there seems to be a steady stream of classified information reaching the public, they say.
“The First Amendment seems quite alive and well in America today,” said a senior FBI official whose name isn’t given.
In their recommendations, Human Rights Watch and the ACLU urge the government to end overly broad and unnecessary surveillance practices. The administration should disclose additional information about the surveillance programs to the public and enhance protections for national security whistleblowers, they said.
According to the report, no journalists who were interviewed thought they could defeat the full efforts of the government to uncover their activities, no matter what intricate technology they used.
“Will it save you in the end? Isn’t the NSA going to crack it or get someone to give up the code?” asked one national security reporter, whom the report doesn’t identify.
The report’s findings are based on interviews over the course of a year with more than 90 lawyers, government officials and journalists from outlets that include The New York Times, The Wall Street Journal, The Washington Post, The Associated Press and McClatchy.