Opinion

Jack Shafer

State Secrets in the Snowden Era

Jack Shafer
May 6, 2014 15:52 UTC
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This piece originally appeared in the March/April issue of Foreign Affairs, and is reprinted with permission.

The U.S. government commands few capabilities more potent than its power to declare information secret. Even when the judiciary and Congress exercise their checks-and-balances powers over the executive branch, the American secrecy machine still finds a way to shunt aside substantive discussions about a host of programs and policies.

With little or no public input, the U.S. government has kidnapped suspected terrorists, established secret prisons, performed “enhanced” interrogations, tortured prisoners, and carried out targeted killings. After the former National Security Agency contractor Edward Snowden pilfered hundreds of thousands of documents from the NSA’s computers and released them to journalists last summer, the public learned of additional and potentially dodgy secret government programs: warrantless wiretaps, the weakening of public encryption software, the collection and warehousing of metadata from phones and e-mail accounts, and the interception of raw Internet communications.

The secrecy machine was originally designed to keep the United States’ foes at bay. But in the process, it has transformed itself into an invisible state within a state. Forever discovering new frontiers to patrol, as the Snowden files indicate, the machine molts its skin each season to grow ever larger and more powerful, encountering little resistance from the courts or Congress.

In his new book, Secrets and Leaks: The Dilemma of State Secrecy (Princeton University Press, 2013, 304 pp. $35), the Princeton political scientist Rahul Sagar ably documents this growth in secrecy and the problems it poses, excavating from his thorough research a concise history of concealment and revelation from the Revolutionary War to the present. Atop this scholarship, he adds legal analysis and an attempt to map a regulatory framework that will keep the country secure, make the government accountable, and still preserve Americans’ civil liberties. Yet in overestimating the damage leaks cause and underestimating how hard it will be to stop them, Sagar arrives at recommendations that are ultimately too impractical and too restrictive.

The executioner’s choir

Jack Shafer
Apr 30, 2014 21:51 UTC

Oklahoma’s executioners accidentally killed Clayton D. Lockett last night while trying to put him to death.

If I’m certain of anything, I’m certain that dozens (hundreds?) of other journalists seized on the travesty, the tragedy, the ineptitude and the torture of Lockett to either commit similar words to print or compose a similar passage in their heads while taking a shower this morning and cursing themselves for not having been assigned to the spectacular death show.

Lockett, who earned his spot in the queue for shooting a 19-year-old woman and burying her alive in 1999, escaped death by lethal injection because the intravenous line that was supposed to feed the life-taking drugs to his system failed.

In defense of political lying

Jack Shafer
Apr 23, 2014 21:36 UTC

If you read closely, you can almost glean a laugh track from the transcripts (pdf) of the oral arguments presented to the Supreme Court on Tuesday in the political lying case, Susan B. Anthony List v. Driehaus. The justices sprayed gentle ridicule and subtle sarcasm on Ohio State Solicitor Eric E. Murphy as he attempted to defend a state law that bans false statements during a political campaign.

Uniform enforcement of the Ohio law — and the dozen and a half other similar state laws — would reduce our political campaigns to what? Three or four months of observed silence before each Election Day?

Aside from money, nothing is more integral to a political campaign than lies. Campaigns lie about the other campaigns; they lie about their own positions, too. They lie about the consequences of the legislation and policies they propose. They lie in their speeches, they lie in their campaign literature, and they lie on TV, radio, on billboards, and over the Internet. Lies, integral as they are to campaigns, can’t be exterminated unless you snuff the campaigns themselves.

The top spook’s stupid gag order

Jack Shafer
Apr 21, 2014 22:30 UTC

The nation’s top spy has prohibited all of his spies from talking with reporters about “intelligence-related information” unless officially authorized to speak. Intelligence Community Directive 119, signed by Director of National Intelligence James R. Clapper last month and made public Monday in a report by Steven Aftergood of the Federation of American Scientists, threatens to reduce the flow of information from the national security establishment to the press — and hence the public.

As Aftergood notes, Directive 119 does not merely bar intelligence community employees from sharing classified intelligence information with reporters. It also bars the discussion with the media of unclassified intelligence information “related” to intelligence. Under Directive 119, any and all conversations between spooks and reporters not explicitly authorized by top officials will be criminalized at the worst or potentially put intelligence employees out of a job at the least. The same discussion of unclassified matters between an intelligence community employee and a non-reporter would be allowed, Aftergood further notes.

Directive 119 increases the insularity of the national security state, making the public less safe, not more. Until this directive was issued, intelligence community employees could provide subtext and context for the stories produced by the national security press without breaking the law. Starting now, every news story about the national security establishment that rates disfavor with the national security establishment — no matter how innocuous — will rate a full-bore investigation of sources by authorities.

Cell phone search case is easy call for Supreme Court

Jack Shafer
Apr 16, 2014 21:45 UTC

Now appearing in the Supreme Court docket: Your cell phone.

Later this month, the court will doff their robes and don their scuba gear to dive to the bottomless depths of the Fourth Amendment and determine whether police can search your mobile phone without a warrant, upon arresting you.

As my Reuters colleague Lawrence Hurley reports, the law has permitted police searches of wallets, calendars, address books and diaries at the time of arrest, “primarily to ensure the defendant is not armed and to secure evidence that could otherwise be destroyed.” But two defendants, David Riley in California and Brima Wurie in Massachusetts, maintain that police and prosecutors overstepped those powers when they searched the defendants’ cell phones, and used digital information gleaned, without warrant, to convict them.

The cases pose a question that would have never occurred to the Framers or to nearly all previous members of the Supreme Court, whose idea of evidence was analog. Consider, for example, the size of the personal library of Thomas Jefferson, the most ardent bibliophile of the period in which the Bill of Rights were written. In 1815, the Library of Congress purchased his library of 6,487 volumes after the British torched its collection. That may sound like a lot of books, but it’s pitifully small by modern measures. The 64 gigabyte iPhone in my pocket could hold more than 60,000 text-only books (following Amazon’s rough rule of thumb of 1,500 books per 1.4 gigabytes).

Dressing up the NYT with fins, chrome and glitter

Jack Shafer
Apr 8, 2014 15:02 UTC

At the beginning of April, the New York Times launched its “Times Premier” digital offering, accessible to Times home delivery subscribers for another $10 every four weeks, on top of what they are already paying. A bewildering product, it seeks to up-sell existing Times customers to a more deluxe version of the Times.

But isn’t the Times supposed to be the deluxe version of the Times in the first place? It’s one thing for Scientology to charge you thousands and thousands of dollars to reach the highest level only to find out there is another level, and to reach it you have to pay again. But Scientology is selling transcendence, and the last time I looked the Times is selling only the news and a useful status chit.

Lured by a free-trial offer, I immersed myself in Times Premier to assess its value — and believe that it can only get better. One of the privileges of Times Premier membership is “Times Insider,” a room-inside-the-newsroom in which Times reporters and editors explain how the paper creates its wonderful variety of authoritative journalism. At present, Times Insider has obituary pro Margalit Fox on how Times obits are written, political reporter Jodi Kantor on the rejection notices a variety of Times reporters have received in their day, standards czar Philip B. Corbett on stylebook deliberations at the paper, and so on.

My secret plan for all that new campaign cash!

Jack Shafer
Apr 3, 2014 22:45 UTC

The campaign finance decision the Supreme Court delivered Wednesday stirred all the same responses from all the same sources, with the anti-money faction bellowing that the Roberts court had now completed its plan — hatched with 2010′s Citizens United ruling —  to put democracy up for sale. The pro-money crowd (to which I belong, by the way), heralded SCOTUS’s latest call as a victory for free speech.

Rather than rehashing that debate and defending a side to predictable results, I’ll burn my column inches identifying the real winner of McCutcheon v. Federal Election Commission — the media. The more money that flows into campaigning, the more campaigns advertise. The more they advertise, the more money they pay media outlets. And the greater the media revenue, the more secure my profession. Whoops, I mean, the more media properties collect, the more they can spend on the sort of watchdog journalism that preserves democracy!

If anybody needs more money, it’s the news business. According to a fresh analysis published by the Pew Research Center, total “revenue supporting American journalism has declined by one-third since 2006,” dropping from about $95 billion to $65 billion today. Advertising revenue has fallen considerably. In 2006, 82 percent of revenue came from advertising; today, only 69 percent. One result of the turn-down, as everybody knows, has been fewer reporters and less agile newsrooms, which I would declare non-optimal even if I didn’t belong to the trade.

Taking a trash-talking Murdoch lieutenant to task

Jack Shafer
Apr 1, 2014 22:41 UTC

 

A journalist hasn’t performed a full day’s work unless at some point he deprecates a competitor, either in print, in a public speech, or idly while exiting the building for lunch. News Corp chief executive Robert Thomson (Wall Street Journal; Times of London; New York Post; Australian; et al.) more than earned his pay Monday, when he rabbit-punched the Washington Post at an Advertising Week Europe conference in London. He castigated Post staffers, most of whom regard themselves as “high priests” of journalism, he said. Their self-worship has prevented them from making the necessary transformative digital switch, Thomson alleged.

As if commissioned by the Post‘s guardian angel, the Financial Times answered (registration required) Thomson’s sass with a glowing story about all the digital initiatives at the Jeff Bezos-era Post. The newsroom is adding three dozen new faces, including data journalists and mobile designers, and has struck a deal with six outland newspapers that will allow their subscribers to bypass the Post pay wall and read all they like there. The paper has established a new online contributor network, drawing on the talent at the Volokh Conspiracy blog, and it has swung (and missed) with its Post TV venture.

Financial Times reporter Emily Steel was dazzled by some of the skunkworks projects that digital wizard Cory Haik showed her, which included prototypes built on Google Glass, Snapchat, the Secret app, and smartwatches. So allow me to correct Robert Thomson: If any future-blocking high priests of journalism remain at the Post, they must be directing their masses off the premises.

The landslide of news

Jack Shafer
Mar 26, 2014 21:52 UTC

Of the many ways nature can kill you, the landslide must be the most cruel. Not as cosmically spectacular as the tectonic tantrum of the earthquake or as catastrophic as pure weather-borne calamities (floods, hurricanes, tornados), the mudslide lies in wait like a heart attack, springing its localized force without much, if any, warning. It’s filthy, it’s bone-crushing, and it’s suffocating. Any trust you have in terra firma will promptly be upended.

The press coverage of Saturday’s landslide in Oso, Wash., which as of this writing has claimed 24 dead and confirmed missing, has expressed this horror with hours of broadcast and thousands of column inches of newsprint — and continues. Today’s New York Times makes the Oso landslide its top story, complete with slideshow and interactive map of the disaster.

Landslides produce more terror than other disasters whose death counts go much higher — plane crashes, earthquakes, fires, freak weather, et al. — because they are so rare. Thanks to television news, our minds have become socialized to the damage done by hurricanes and tornados. But landslides introduce us to the unfamiliar. “It feels like you are in not a junkyard, but in a landfill,” said the sister of one of the Oso victims as she surveyed the site. “You’ve got sewer pipes. You’ve got dirty diapers.”

The jumbo coverage of Malaysia flight MH370

Jack Shafer
Mar 17, 2014 21:33 UTC

When a big story breaks, my news digestion knows no satiety. Earthquake, assassination, invasion, bank run, political campaign, celebrity court case, sport scandal or a drunk stubs his toe on the Lower East Side — I can handle anything the press swarm sends at me.

So unlike Fox News press reporter Howard Kurtz (“It’s too much with too few facts,” he said last week of the saturation reporting by his former network, CNN, about Malaysia Airlines Flight MH370), I can handle any “over”-coverage the news machine chooses to throw my way. By handle, I usually mean avoid, but on a story like MH370, I desire the sort of coverage that could fill the Indian Ocean, which I did not know until last week had an average depth of 2.5 miles.

That fact was only one of the scores of news nuggets I’ve chewed and swallowed since the airliner was reported missing on March 8. While I’m aware that the flight’s fate, its back story, and repercussions will have no impact on my life, and that there aren’t enough degrees of Kevin Bacon to connect me to 95 percent of the missing passengers, I have clawed my way through stories and even stayed up at night to learn about transponders, the different kinds of radars, the stolen passport business, the number of air strips within MH370′s flight range that could have accommodated a landing, general Malaysian political incompetence, Southeast Asian geography, satellite telemetry, international relations, black boxes, the workings of the Malaysian criminal justice system, the Andaman Islands, life raft locator radios, search technologies, air navigation and more. One measure of my devotion to this story is that I even watched an oceanographer talk on Charlie Rose about the missing aircraft.

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