Aryeh Neier fellow at Human Rights Watch and the American Civil Liberties Union. He is the author of the report, "With Liberty to Monitor All: How Large-Scale U.S. Surveillance Is Harming Journalism, Law, and American Democracy.”
staff reporter with The Intercept. His new article with Ryan Devereaux is "The Secret Government Rulebook for Labeling You a Terrorist."
In a new report, Human Rights Watch and the American Civil Liberties Union warn that "large-scale surveillance is seriously hampering U.S.-based journalists and lawyers in their work." The report is based on interviews with dozens of reporters and lawyers. They describe a media climate where journalists take cumbersome security steps that slows down their reporting. Sources are afraid of talking, as aggressive prosecutions scare government officials into staying silent, even about issues that are unclassified. For lawyers, the threat of surveillance is stoking fears they will be unable to protect a client’s right to privacy. Some defendants are afraid of speaking openly to their own counsel, undermining a lawyer’s ability provide the best possible defense. We speak to Alex Sinha, author of the report, "With Liberty to Monitor All: How Large-Scale U.S. Surveillance Is Harming Journalism, Law, and American Democracy," and to national security reporter Jeremy Scahill.
AARON MATÉ: It’s been over a year since Edward Snowden exposed mass surveillance by the NSA. Now comes the most comprehensive look to date at how unchecked government spying is impacting two fields we all rely on to curb abuses of power and defend basic rights. The results are chilling. In a new report, Human Rights Watch and the American Civil Liberties Union warn "large-scale surveillance is seriously hampering U.S.-based journalists and lawyers in their work." The report is based on interviews with dozens of reporters and lawyers. This is Brian Ross, chief investigative correspondent for ABC News.
BRIAN ROSS: We sometimes feel—or I feel, at least—like you’re operating like somebody in the Mafia. You’ve got to go around with a bag full of quarters and, if you can find a pay phone, use it, or use, like drug dealers use, you know, throwaway burner phones. These are all the steps that we have to take to get rid of an electronic trail. To have to take those kind of steps makes journalists feel like we’re criminals and like we’re doing something wrong. And I don’t think we are. I think we’re providing a useful service to Americans to know what’s going on in their government and what’s happening.
AMY GOODMAN: That’s ABC’s Brian Ross. For lawyers, the threat of surveillance is stoking fears they will be unable to protect a client’s right to privacy. Some defendants are afraid of speaking openly to their own counsel, undermining a lawyer’s ability to provide the best possible defense. Human Rights Watch and the ACLU conclude this climate "undermines press freedom, the public’s right to information, and the right to counsel, all human rights essential [to] a healthy democracy."
Well, for more, we’re joined by Alex Sinha, author of the report, "With Liberty to Monitor All: How Large-Scale U.S. Surveillance Is Harming Journalism, Law, and American Democracy." He’s the Aryeh Neier fellow at Human Rights Watch and the American Civil Liberties Union. Still with us, longtime national security reporter Jeremy Scahill of The Intercept.
Talk about what you found.
ALEX SINHA: Sure. I think the most remarkable thing we have here is we finally have documentation of concrete harms that flow from large-scale surveillance. I mean, we’ve been having this debate in the country over the last year about what surveillance means for the society and what we should do about it, but we focus a lot on abstract harms to privacy. And while those are important, as well, I think it’s really helpful to have something to point to, to say, "Look, this is what we’re losing. Journalists are losing sources, and so less information reaches the public. Attorneys are losing the ability to be secure in their communications, and that undermines their ability to represent their clients."
AMY GOODMAN: Give us examples.
ALEX SINHA: So, I mean, I had many attorneys talk about how they feel obligated to warn their clients that their communications are not actually confidential, that there’s a chance that somebody could pick up what they’re saying, and therefore that in order to build their case strategy or in order to exchange basic facts about their case, they need to meet in person, they need to do it in a certain way that’s secure. The journalists reported similar things, that instead of using conventional methods of connecting to sources—emails, phone calls, whatever—you have to contrive a way to bump into a person, you know, meet them face to face, find a way to do that without leaving an electronic trail to set up the meeting in the first place, and which is really slowing down the reporters.
AMY GOODMAN: Let’s go to another journalist that Human Rights Watch and the ACLU spoke to for this report: Jonathan Landay, national security reporter for McClatchy. These are some of the concerns he expressed.
JONATHAN LANDAY: What we found out through the Snowden disclosures is that the United States government is collecting all of our metadata, which shows who your social and professional networks are, who your connections are, where you are at a particular time, where perhaps a source is. They don’t need to know what you were talking about. They’ve got enough to be able to go to your source and say, "Why were you talking to this journalist?"
When it comes to protecting a source, I’ve had to teach myself, you know, using encryption engine, this kind of thing. I don’t take my iPhone with me when I go to meet a source. Unless you take the battery out, you can still be tracked. I was leaked classified intelligence community documents last year that cataloged quite a few years of U.S. drone strikes in Pakistan. I went to considerable lengths to protect my source, and I’m not going to tell you what I did.
AMY GOODMAN: That’s Jonathan Landay of McClatchy. Alex Sinha, you can’t take a battery out of your iPhone.
ALEX SINHA: I believe that’s why he tends to leave it behind, yeah.
AMY GOODMAN: And Jeremy Scahill?
JEREMY SCAHILL: Well, I mean, look, all of us that are doing this kind of reporting—you know, and I read in the report, my colleague Adam Goldman, who’s a fantastic reporter at The Washington Post, said, you know, we’re forced to sort of act like we’re spies. And we’re not spies. We’re journalists. And we shouldn’t be forced to do all this. But there’s a war on journalism around the world, and in some countries it comes in the form of journalists being murdered. Here, it comes in the form of our communications being surveilled, phone records being seized, our communications being monitored.
You know, there’s something that’s a little bit funny about this, but it’s also creepy. When we spoke to the National Counterterrorism Center the other day, one of the things they said early on in the call is, "Jeremy, we know you’ve been making a bunch of phone calls throughout Washington, D.C., today." And I’m like, "Well, I mean, thank you for acknowledging that," but it’s like—you know, I mean, I think that they basically—the Obama administration’s posture is that only state propaganda belongs in the public domain, and if you want to cultivate your own sources and you want to challenge assertions made by officials in Washington by developing your own sources, we’re going to go after you with the full extent of the law.
AARON MATÉ: Alex, do any of the NSA reform bills currently before Congress do anything to address the concerns in your report?
ALEX SINHA: Well, so the USA FREEDOM Act, that was passed by the House, does almost nothing that we would like to see. The debate in the Senate, I understand, is potentially better. There’s a bill being kicked around there that might be stronger. What we’d like to see is an end to large-scale collection of metadata, and we’d like to see a bill that has no data retention mandate. And I haven’t seen the language of the current Senate bill, so I’m not sure if that’s in there.
AMY GOODMAN: Talk about Section 215 of the USA PATRIOT Act, Alex.
ALEX SINHA: Sure. So, Section 215 of the PATRIOT Act has been used by the government for the last few years to collect large, just massive numbers of domestic phone call records, among other things. And so, this is one of the things that many of the journalists, in particular, are worried about, that in theory, the government has access to detailed records that show who they’re calling, when they’re calling, how long they’ve spoken. And in the case of a leak investigation or even just an internal investigation at some federal agency, it’s enough for the government to know: "OK, you were talking to journalist X. Why were you talking to journalist X? Why didn’t you tell us about this? And what were you saying?"
JEREMY SCAHILL: If you want to read something really, really interesting—I mean, it’s too much detail to get into right now—go online and find the warrant that was served on Google for the emails of James Rosen of Fox News, who of course he was leaked information, allegedly, by a federal employee who is now serving a prison sentence. But if you read what the government did to justify seizing all of James Rosen’s Gmail—not his Fox News account, his Gmail—it’s incredible. They basically said—and they knew that this wasn’t true—that James Rosen is basically in a conspiracy to commit a very, very serious crime, and we need to get all of his emails. Now, James Rosen was also an imbecile in how he dealt with his source, and that’s clear in that warrant. Read that warrant. It’s chilling for press freedom.
AMY GOODMAN: We’re going to have to leave it there. Jeremy Scahill with The Intercept and Alex Sinha, the author of the report, "With Liberty to Monitor All: How Large-Scale U.S. Surveillance Is Harming Journalism, Law, and American Democracy." He’s at the ACLU and Human Rights Watch.
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