In a healthy democracy, the opposite is true. Democracy requires accountability and consent of the governed, which is only possible if citizens know what is being done in their name. The presumption is that, with rare exception, they will know everything their political officials are doing, which is why they are called public servants, working in the public sector, in public service, for public agencies. Conversely, the presumption is that the government, with rare exception, will not know anything that law-abiding citizens are doing. That is why we are called private individuals, functioning in our private capacity. Transparency is for those who carry out public duties and exercise public power. Privacy is for everyone else.
5
THE FOURTH ESTATE
One of the principal institutions ostensibly devoted to monitoring and checking abuse of state power is the political media. The theory of a “fourth estate” is to ensure government transparency and provide a check on overreach, of which the secret surveillance of entire populations is surely among the most radical examples. But that check is only effective if journalists act adversarially to those who wield political power. Instead, the US media has frequently abdicated this role, being subservient to the government’s interests, even amplifying, rather than scrutinizing, its messages and carrying out its dirty work.
In this context, I knew that media hostility toward my reporting on Snowden’s disclosures was inevitable. On June 6, the day after the first NSA article ran in the Guardian, the New York Times introduced the possibility of a criminal investigation. “After writing intensely, even obsessively, for years about government surveillance and prosecution of journalists, Glenn Greenwald has suddenly put himself directly at the intersection of those two issues, and perhaps in the crosshairs of federal prosecutors,” the paper proclaimed in a profile of me. My NSA reporting, it added, “is expected to attract an investigation from the Justice Department, which has aggressively pursued leakers.” The profile quoted the neoconservative Gabriel Schoenfeld of the Hudson Institute, who has long advocated the prosecution of journalists for publishing secret information, calling me “a highly professional apologist for any kind of anti-Americanism no matter how extreme.”
The most revealing evidence of the Times’s intentions came from the journalist Andrew Sullivan, who was quoted in the same profile saying, “Once you get into a debate with [Greenwald], it can be hard to get the last word,” and “I think he has little grip on what it actually means to govern a country or run a war.” Disturbed by the use of his comments out of context, Andrew later sent me his full exchange with the Times reporter Leslie Kaufman, which included praise for my work that the paper had notably chosen to omit. What was more telling, however, were the original questions Kaufman had sent him:
• “He obviously had strong opinions, but how is he as a journalist? Reliable? Honest? Quotes you accurately? Accurately describes your positions? Or is more advocate than journalist?”
• “He says you are a friend, is this so? I get the sense that he is something of a loner and has the kind of uncompromising opinions that makes it hard to keep friends, but could be wrong.”
The second question—that I’m “something of a loner” who has trouble keeping friends—was, in some sense, even more significant than the first. Discrediting the messenger as a misfit to discredit the message is an old ploy when it comes to whistle-blowing, and it often works.
The effort to discredit me personally was fully brought home when I received an email from a reporter for the New York Daily News. He said he was investigating various aspects of my past, including debts, tax liability, and partnership in an adult video distribution company by a private corporation in which I had owned shares eight years earlier. Because the Daily News is a tabloid often trafficking in personal sleaze, I decided not to respond: there was no reason to bring more attention to the issues it had raised.
But that same day, I received an email from a Times reporter, Michael Schmidt, also interested in writing about my past tax debt. How the two newspapers had simultaneously learned of such obscure details was a mystery, but the Times had evidently decided that my prior debt was newsworthy—even as it refused to provide any rationale for why that was the case.
These issues were plainly trivial and intended to smear. The Times ended up not running the story, unlike the Daily News, which even included details of a conflict I had in my apartment building ten years earlier over a claim that my dog exceeded the weight limit allowed by the condominium bylaws.
While the smear campaign was predictable, the effort to deny my status as a journalist was not, and it had potentially drastic ramifications. Again, this campaign was kicked off by the New York Times, also in its June 6 profile. In the headline the paper went out of its way to assign me some non-journalistic title: “Blogger, with Focus on Surveillance, Is at Center of a Debate.” As bad as the headline was, the online original was even worse: “Anti-Surveillance Activist Is at Center of a New Leak.”
The paper’s public editor, Margaret Sullivan, criticized the headline, saying she found it “dismissive.” She added: “There’s nothing wrong with being a blogger, of course—I am one myself. But when the media establishment uses the term, it somehow seems to say, ‘You’re not quite one of us.’”
The article went on repeatedly to cast me as something other than a “journalist” or “reporter.” I was, it declared, a “lawyer and longtime blogger” (I have not practiced law for six years, and had worked for years as a columnist at major news venues, in addition to having published four books). To the extent I ever acted “as a journalist,” it said, my experience was “unusual,” not because of my “clear opinions” but because I had “rarely reported to an editor.”
The media in full then got into a debate about whether I was in fact a “journalist” as opposed to something else. The most commonly offered alternative was “activist.” Nobody bothered to define any of these words, relying instead on ill-defined clichés, as the media tends to do, particularly when the goal is demonization. Thereafter, the empty, vapid label was routinely applied.
The designation had real significance on several levels. For one, removing the label of “journalist” diminishes the legitimacy of the reporting. Moreover, turning me into an “activist” could have legal—that is, criminal—consequences. There are both formal and unwritten legal protections offered to journalists that are unavailable to anyone else. While it is considered generally legitimate for a journalist to publish government secrets, for example, that’s not the case for someone acting in any other capacity.
Intentionally or not, those pushing the idea that I was not a journalist—despite the fact that I was writing for one of the oldest and largest newspapers in the Western world—were making it easier for the government to criminalize my reporting. After the New York Times proclaimed me an “activist,” Sullivan, the public editor, acknowledged that “these matters have taken on more significance in the current climate, and could be crucial for Mr. Greenwald.”
The allusion to “the current climate” was shorthand for two major controversies that had engulfed Washington involving the administration’s treatment of journalists. The first was the DOJ’s secret acquisition of emails and telephone records of Associated Press reporters and editors to find out their source for a story.
The second, more extreme incident involved the DOJ’s effort to learn the identity of another source who had leaked secret information. To do so, the department filed an affidavit in federal court seeking a warrant to read the emails of Fox News Washington bureau chief James Rosen.
In the application for the warrant, government lawyers branded Rosen a “co-conspirator” in the source’s felonies by virtue of the fact that he had obtained classified material. The affidavit was shocking because, as the New York Times put it, “no American journalist has ever been prosecuted for gathering and publishing classified information, so the language raised the prospect that the Obama administration was taking its leak crackdo
wn to a new level.”
The behavior cited by the DOJ to justify Rosen’s designation as “co-conspirator”—working with his source to obtain documents, establishing a “covert communication plan” to speak without detection, and “employing flattery and playing to [his source’s] vanity and ego” to persuade him to leak—were all things investigative journalists routinely do.
As veteran Washington reporter Olivier Knox put it, the DOJ had “accused Rosen of breaking anti-espionage law with behavior that—as described in the agent’s own affidavit—falls well inside the bounds of traditional news reporting.” To view Rosen’s conduct as a felony was to criminalize journalism itself.
This move was perhaps less surprising than it might have been, given the larger context of the Obama administration’s attacks on whistleblowers and sources. In 2011, the New York Times revealed that the DOJ, attempting to find the source for a book written by James Risen, had “obtained extensive records about his phone calls, finances and travel history,” including “his ‘credit card and bank records and certain records of his airline travel’ and three credit reports listing his financial accounts.”
The DOJ was also trying to force Risen to reveal his source’s identity, with the likely prospect of prison if he refused to do so. Journalists around the country were dismayed by Risen’s treatment: if one of the most accomplished and institutionally protected investigative reporters could be subject to such an aggressive attack, then so could any journalist.
Many in the press responded with alarm. One typical article, from USA Today, noted that “President Obama finds himself battling charges that his administration has effectively launched a war on journalists,” and quoted former Los Angeles Times national security reporter Josh Meyer saying: “There’s a red line that no other administration has crossed before that the Obama administration has blown right past.” Jane Mayer, the widely admired investigative reporter for the New Yorker, warned in the New Republic that the Obama DOJ’s targeting of whistle-blowers was operating as an attack on journalism itself: “It’s a huge impediment to reporting, and so chilling isn’t quite strong enough, it’s more like freezing the whole process into a standstill.”
The Committee to Protect Journalists—an international organization that monitors attacks on press freedoms by the state—was moved by the situation to issue its first-ever report about the United States. Written by Leonard Downie Jr., past executive editor of the Washington Post, the report, issued in October 2013, concluded:
The administration’s war on leaks and other efforts to control information are the most aggressive … since the Nixon administration.… The 30 experienced Washington journalists at a variety of news organizations … interviewed for this report could not remember any precedent.
The dynamic extended beyond national security to encompass, as one bureau chief said, an effort “to thwart accountability reporting about government agencies.”
US journalists, for years overwhelmingly enamored of Barack Obama, were now commonly speaking of him in these terms: as some sort of grave menace to press freedoms, the most repressive leader in this regard since Richard Nixon. That was quite a remarkable turn for a politician who was ushered into power vowing “the most transparent administration in US history.”
To tamp down the growing scandal, Obama ordered Attorney General Eric Holder to meet with representatives of the media and review the rules governing the DOJ’s treatment of journalists. Obama claimed to be “troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable”—as though he hadn’t presided over five years of precisely those sorts of assaults on the news-gathering process.
Holder vowed in a Senate hearing on June 6, 2013 (the day after the Guardian’s first NSA story) that the DOJ would never prosecute “any reporter for doing his or her job.” The DOJ’s goal, he added, is merely “to identify and prosecute government officials who jeopardize national security by violating their oaths, not to target members of the press or discourage them from carrying out their vital work.”
On some level, this was a welcome development: the administration had evidently felt sufficient backlash to create at least the appearance of addressing press freedom. But there was a huge, gaping hole in Holder’s vow: the DOJ had determined, in the case of Fox News’s Rosen, that working with one’s source to “steal” classified information was beyond the scope of the “reporter’s job.” Thus Holder’s guarantee depended on the DOJ’s view of what journalism is and what exceeds the boundaries of legitimate reporting.
Against that background, the effort by some media figures to cast me out of “journalism”—to insist that what I was doing was “activism,” not reporting, and therefore criminal—was potentially dangerous.
The first explicit call to prosecute me came from New York Republican congressman Peter King, who had served as chairman of the House Subcommittee on Terrorism and had convened McCarthyite hearings on the terror threat posed “from within” by the American Muslim community (ironically, King was a longtime supporter of the IRA). King confirmed to CNN’s Anderson Cooper that reporters working on the NSA stories should be prosecuted “if they willingly knew that this was classified information … especially on something of this magnitude.” He added, “There is an obligation both moral but also legal, I believe, against a reporter disclosing something that would so severely compromise national security.”
King later clarified on Fox News that he was speaking specifically of me:
I’m talking about Greenwald … not only did he disclose this information, he has said that he has names of CIA agents and assets around the world, and they’re threatening to disclose that. The last time that was done in this country, we saw a CIA station chief murdered in Greece.… I think [prosecution of journalists] should be very targeted, very selective and certainly a very rare exception. But, in this case, when you have someone who discloses secrets like this and threatens to release more, yes, there has to be—legal action taken against him.
That I had threatened to release the names of CIA agents and assets was a complete fabrication. Nonetheless, his remarks opened the floodgates and commentators piled on. The Washington Post’s Marc Thiessen, a former Bush speechwriter who wrote a book justifying the US torture program, defended King under the headline, “Yes, Publishing NSA Secrets Is a Crime.” Accusing me of “violating 18 USC 798, which makes it a criminal act to publish classified information revealing government cryptography or communications intelligence,” he added, “Greenwald clearly violated this law (as did the Post, for that matter, when it published classified details of the NSA’s PRISM program).”
Alan Dershowitz went on CNN and pronounced: “Greenwald—in my view—clearly has committed a felony.” A known defender of civil liberties and press freedoms, Dershowitz nonetheless said that my reporting “doesn’t border on criminality—it’s right in the heartland of criminality.”
The growing chorus was joined by General Michael Hayden, who led both the NSA and then the CIA under George Bush, and implemented the agency’s illegal warrantless eavesdropping program. “Edward Snowden,” he wrote on CNN.com, “will likely prove to be the most costly leaker of American secrets in the history of the Republic,” and then added that “Glenn Greenwald” is “far more deserving of the Justice Department’s characterization of a co-conspirator than Fox’s James Rosen ever was.”
At first largely confined to right-wing figures who could be expected to view journalism as a crime, the chorus of voices raising the question of prosecution grew during a now-infamous appearance on Meet the Press.
The White House itself has praised Meet the Press as a comfortable venue for DC political figures and other elites to deliver their message without much challenge. The weekly NBC program was hailed by Catherine Martin, former vice president Dick Cheney’s communications director, as “our best format” because Cheney was able to “control the message.” Putting the vice president on M
eet the Press was, she said, a “tactic we often used.” Indeed, a video of the show’s host, David Gregory, onstage at the White House Correspondents’ Dinner, dancing awkwardly but enthusiastically behind a rapping Karl Rove, went viral because it so vividly symbolized what the show is: a place where political power goes to be amplified and flattered, where only the most staid conventional wisdom is heard, where only the narrowest range of views is permitted.
I was invited to appear on the program at the last minute and only out of necessity. Hours earlier, the news broke that Snowden had left Hong Kong and was on a plane to Moscow, a dramatic turn of events that would inevitably dominate the news cycle. Meet the Press had no choice but to lead with the story, and, as one of the very few people in contact with Snowden, I was asked to be on the show as the lead guest.
I had harshly criticized Gregory over the years and anticipated an adversarial interview. But I did not expect this question from him: “To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?” There were so many things wrong with the question that it took a minute to process that he had actually asked it.
The most glaring problem was the number of baseless assumptions embedded in the question. The statement “To the extent” that I had “aided and abetted Snowden, even in his current movements” is no different than saying “To the extent that Mr. Gregory has murdered his neighbors…” This was nothing but a striking example of the “When did you stop beating your wife?” formulation.
But beyond the rhetorical fallacy, a TV journalist had just given credence to the notion that other journalists could and should be prosecuted for doing journalism, an extraordinary assertion. Gregory’s question implied that every investigative reporter in the United States who works with sources and receives classified information is a criminal. It was precisely this theory and climate that had made investigative reporting so precarious.
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