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Report examines effects of surveillance on reporters’ sources

July 29, 2014 at 6:35 PM EDT
A new report by Human Rights Watch and the ACLU says the American government has overstepped its boundaries in clamping down on the work of reporters and their sources. Jeffrey Brown gets debate on the findings from Dana Priest of The Washington Post and Stewart Baker, former senior official at the Department of Homeland Security.

GWEN IFILL: The relationship between government and investigative journalists has often been fraught, one wanting to hold onto classified intelligence, the other seeking to pry open secrets, each believing it’s serving the public interest.

But a new report makes the claim that in the post-9/11 era, the government has gone too far in clamping down on the work of reporters and their sources.

Jeffrey Brown has our look.

JEFFREY BROWN: The report comes from the advocacy groups Human Rights Watch and the ACLU and is titled “With Liberty To Monitor All: How Large-Scale U.S. Surveillance Is Harming Journalism, Law, and American Democracy.”

It was produced after talking with dozens of public officials, lawyers, and most of all, journalists.

One of the latter is with us now, Dana Priest, an investigative reporter for The Washington Post and a professor at the University of Maryland. With another view of the situation, we’re joined by Stewart Baker, former assistant secretary at the Department of Homeland Security in the Bush administration. He’s also a former general counsel at the NSA in the 1990s.

And welcome to both of you.

DANA PRIEST, The Washington Post: Thank you.

JEFFREY BROWN: Dana Priest, first, in general terms, state the problem so people understand that — for someone like yourself in doing this kind of reporting.

DANA PRIEST: Well, the report focuses on a trend that has — you can’t escape.

One is all the information that’s come out on surveillance and what is the impact of that on reporters’ ability to do their job, in other words, to cultivate and guard confidential sources usually within the government who don’t want to be named?

Next to that is a record number of prosecutions of reporters by the Obama administration for their involvement in writing stories. And third would be the just increase in what they perceive as leaks from these large caches of information, the WikiLeaks and — that came a couple of years ago and then Edward Snowden’s documents that he released to a couple of journalists.

And so that together has made the government very fearful. It has instituted an insider threat program that is very restrictive that asks people to not to talk to reporters, not even if they’re not discussing unclassified information, unless it’s OKed in a sort of centralized way.

And what impact has that had on reporting?  And you won’t be surprised that it’s had a big chill on national security reporting.

JEFFREY BROWN: OK. We will go through some specifics.

But, Stewart, by the way, you had a look at this, too.

STEWART BAKER, Former Senior Official, Department of Homeland Security: I did.

JEFFREY BROWN: What is your general take?  Do you see a large-scale problem?

STEWART BAKER: I think there’s a complete disconnect between what they blame for the problem, which is the trendy discussions of national security surveillance, and the observation that it is easier to find the people who are leaking in most cases.

Those two things are not connected at all in the report and probably not in reality. There are almost no leaks — in fact, no leaks I have seen the were — where the leaker was identified by the 215 program we have heard so much about or overseas collection of…

JEFFREY BROWN: These large-scale surveillance programs.

STEWART BAKER: What’s going on and what is making it easier to make these cases is, we are surrounded by more digital information and we are dropping those digits everywhere.

And so when investigators see classified information in the newspaper, when they’re trying to figure out who leaked, it’s easy to figure out about social connections, the who spoke to whom, who sent e-mail to whom, and to start narrowing the circle until you’re pretty sure who — you know who did it.

JEFFREY BROWN: Well, can you give us a specific — make the connection that he’s not seeing between the surveillance program and the impact on you…

DANA PRIEST: Yes, I don’t think they’re trying to make the connections between the prosecutions and the surveillance necessarily, but between the surveillance, possible surveillance, and the ability of the media to do its traditional watchdog role in the national security arena.

And, in that regard, when you look at the information that has been revealed from the Snowden documents, it’s clear that their capabilities are endless, and that they have — they work in the domestic realm as well. And that has not only meant that reporters feel that they’re potentially more targeted — and some of them absolutely do feel — you will find a range on that — but also, more importantly, that the sources worry about that. And so…

JEFFREY BROWN: And they say that to you or you’re aware of it in your relationship?


And all the reporters they talk to, which I think there are 46 national security reporters, all experienced people who have been doing this for years, and all say it is worse than it has ever been, including after 9/11, when this really started in earnest, during the Bush administration.

And one of the reasons is this defensive crouch, I would call it, by administration to get a handle, as you were saying, on the digital information that is out there that used to not be out there, and the vulnerability in their own system, which they have not corrected.

And I think that this, in a way, is swatting the fly with a hammer or going after the wrong target. They do need to look at — insider threat is serious. We don’t want to damage national security in whatever we do, but look at how — how do you be most effective?  It is really to make it difficult for us to have exchanges with legitimate sources on even nonclassified information?

JEFFREY BROWN: Well, that sounds like more than a vague sense of disconnection.

STEWART BAKER: Well, it is not the case that any of these surveillance programs were used to find the leakers.

And I don’t think you disagree. What you’re saying is, people are afraid of the programs, and that has made them less willing to talk to me.

I think part of that is the press, which has hyped these stories by saying, is NSA spying on you this morning or this afternoon, when NSA is, in fact, not spying on Americans as a routine matter at all. And, so, to the extent that the press has scared people about these programs, they are reaping what they sowed.

But I think, more important, people have simply realized, they have woken up to the fact that if they talk to reporters and they release classified information, they are at risk of having the fact that they are the source of the leak found by ordinary criminal investigative means.

It is not super spooky stuff that is catching these guys. And if the complaint is, they didn’t used to know that and they talked to me, and now they know it and they don’t talk to me, I think it’s just a matter of what reporters were getting away with in suckering their sources before.

JEFFREY BROWN: Well, that would be the counterargument to reporters, right, is that you’re getting people to in some ways break the law if it means giving you classified information.

DANA PRIEST: You know, this is not at all new.


DANA PRIEST: We have been — and, in fact, if you look back through the Cold War, the — all the failures and the vulnerabilities of the U.S. government have been outed by the media.

And that’s what we see part of our most important role being, you know, policy failures, failure of the government to do what it says it’s going to do, including reining itself in when it comes to intelligence work and particularly in the domestic arena. So this is — this idea that we’re duping people or, you know, tricking them, we’re doing our job.

And the people inside government, they know that. And what is different now, is this administration is more defensive, it is more controlling of how it wants information to be let out, in an unprecedented way.

STEWART BAKER: Oh, really?

DANA PRIEST: No, really.

STEWART BAKER: I think — I think the press has said that about every president since Nixon.

DANA PRIEST: Right — right after 9/11, it was true of the Bush administration.

But, in a way, you could understand that. We all thought we might be attacked again. But what the Obama administration is doing is, it’s requiring very simple explanations that reporters are asking for to be vetted all the way up to a central White House press office, which is crazy.

It slows it down. It makes it all about talking points. And that forces reporters to work harder to go around any kind of apparatus that might actually choose to be helpful to reporters.

JEFFREY BROWN: You don’t see a movement towards more control of information and national security?

STEWART BAKER: It is all — it is an understandable goal, if you’re trying to protect national security, not to have decisions about what secrets should be kept in the hands of reporters, who have a strong interest in disclosing even national security secrets.

So, yes, of course, the government has always wanted to keep classified information out of the hands of reporters. What they’re doing now is using tools that have been used in organized crime investigations for 30 years to find information about who’s talking to whom.

And that has turned out to be a very productive way of not going after the journalists, but going after the sources who are violating their oath.

JEFFREY BROWN: Give me a brief sense of how it’s changed your life. I mean, what — what kinds of things do you do differently?

DANA PRIEST: Well, this is the tricky parts of the sources and methods. We all have them.

But, in essence, it’s slowed things down. We have to use — we have to be more circuitous. We have to use the technology that we can, encryption and air gap technology on computers or just more face-to-face encounters. And it just does slow it down, not only for national security, though. It can slow it down in even policy discussions, where we really need the government’s help.

JEFFREY BROWN: All right. I’m afraid we are going to have to leave it there.

Dana Priest and Stewart Baker, thank you so much.

STEWART BAKER: It was a pleasure.

DANA PRIEST: Thank you.