Pixel Envy

Written by Nick Heer.

Pulitzers, Pardons, and the Post

Remember this story from June 2013?

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track foreign targets, according to a top-secret document obtained by The Washington Post.

That article revealed the existence of the NSA’s PRISM program. It was amongst the earliest articles published from Edward Snowden’s disclosures, and was the first from the Washington Post, reporters from which were given access to the leaked documents. The Post shared a Pulitzer Prize with the Guardian for their work in reporting on the NSA’s domestic and foreign surveillance programs over the course of the rest of the year, including for that article on PRISM.

Two weeks later, the Post published an editorial by Laura K. Donahue:

Another program, PRISM, disclosed by the Guardian and The Washington Post, allows the NSA and the FBI to obtain online data including e-mails, photographs, documents and connection logs. The information that can be assembled about any one person — much less organizations, social networks and entire communities — is staggering: What we do, think and believe.

And, in April 14, Paul Farhi wrote for the Post about the Pulitzer Prize they had just earned:

In both the NSA and Pentagon Papers stories, the reporting was based on leaks of secret documents by government contractors. Both Snowden and Daniel Ellsberg — who leaked the Pentagon Papers to Times reporter Neil Sheehan — were called traitors for their actions. And both the leakers and the news organizations that published the stories were accused by critics, including members of Congress, of enabling espionage and harming national security.

But Post Executive Editor Martin Baron said Monday that the reporting exposed a national policy “with profound implications for American citizens’ constitutional rights” and the rights of individuals around the world.

“Disclosing the massive expansion of the NSA’s surveillance network absolutely was a public service,” Baron said. “In constructing a surveillance system of breathtaking scope and intrusiveness, our government also sharply eroded individual privacy. All of this was done in secret, without public debate, and with clear weaknesses in oversight.”

This history makes yesterday’s Post editorial arguing against a pardon for Snowden all the more startling:

Mr. Snowden’s defenders don’t deny that he broke the law — not to mention oaths and contractual obligations — when he copied and kept 1.5 million classified documents. They argue, rather, that Mr. Snowden’s noble purposes, and the policy changes his “whistle-blowing” prompted, justified his actions. Specifically, he made the documents public through journalists, including reporters working for The Post, enabling the American public to learn for the first time that the NSA was collecting domestic telephone “metadata” — information about the time of a call and the parties to it, but not its content — en masse with no case-by-case court approval. The program was a stretch, if not an outright violation, of federal surveillance law, and posed risks to privacy. Congress and the president eventually responded with corrective legislation. It’s fair to say we owe these necessary reforms to Mr. Snowden.

The complication is that Mr. Snowden did more than that. He also pilfered, and leaked, information about a separate overseas NSA Internet-monitoring program, PRISM, that was both clearly legal and not clearly threatening to privacy. (It was also not permanent; the law authorizing it expires next year.)

It was the Post’s choice to report on that. They seized on a scoop and published dozens of articles and editorials arguing that the NSA’s surveillance efforts — including PRISM — amounted to a significant intrusion into our personal privacy. These articles earned them admiration, praise, and a Pulitzer Prize. And now, they’re arguing that these programs were fine and that their source should be sent to prison?

The Post continues:

No specific harm, actual or attempted, to any individual American was ever shown to have resulted from the NSA telephone metadata program Mr. Snowden brought to light.

On the contrary, all of these programs — and, in particular, the cited Verizon metadata collection court order — has harmed the privacy rights of every American, not to mention billions of others around the world, as pointed out by Post executive editor Martin Baron.

In contrast, his revelations about the agency’s international operations disrupted lawful intelligence-gathering, causing possibly “tremendous damage” to national security, according to a unanimous, bipartisan report by the House Permanent Select Committee on Intelligence. What higher cause did that serve?

“Higher cause”? How about providing Americans some information on the decisions being made in secret that directly contributed to the mass collection of their communications on an unprecedented scale?

Glenn Greenwald writing for the Intercept:

The Editorial Page is separate from the news organization and does not speak for the latter; I seriously doubt the journalists or editors at the Post who worked on these news stories would agree with any of that editorial. But still, if the Post Editorial Page Editors now want to denounce these revelations, and even call for the imprisonment of their paper’s own source on this ground, then they should at least have the courage to acknowledge that it was the Washington Post – not Edward Snowden – who made the editorial and institutional choice to expose those programs to the public. They might want to denounce their own paper and even possibly call for its prosecution for revealing top secrets programs that they now are bizarrely claiming should never have been revealed to the public in the first place.

Snowden knew fully that leaking millions of pages of classified and top secret operational data was illegal, and that the American government would throw every law in the book against him. It’s reasonable for him to have left the United States because remaining at home would land him in prison without a fair trial, as the Post’s editorial acknowledges:

Ideally, Mr. Snowden would come home and hash out all of this before a jury of his peers. That would certainly be in the best tradition of civil disobedience, whose practitioners have always been willing to go to jail for their beliefs. He says this is unacceptable because U.S. secrecy-protection statutes specifically prohibit him from claiming his higher purpose and positive impact as a defense — which is true, though it’s not clear how the law could allow that without creating a huge loophole for leakers.

Holding a fair trial with a defence built around a greater public good is not a “loophole” — it’s the bare minimum for a fair trial in a democracy.

But there’s no current means for such a trial to occur, due in no small part to the legal mechanisms revealed through documents leaked by Snowden. As a result, the only method available for him to argue his case is a pardon. It’s not cowardly or an attempt to trivialize his actions; it’s the only avenue. And we only know that because of documents and stories selected for publishing by the Post. As a result, the Post should be supporting Snowden’s bid for a pardon, if for no “higher purpose” than their own journalistic integrity and ego.

And, if their editorial board continues to argue that Snowden not be pardoned, I submit that the Post should return their Pulitzer. They clearly don’t think of their own work as having a “higher cause”.