The ACLU collaborated with Human Rights Watch to extensively interview 92 reporters and attorneys about the impact of government surveillance and secrecy on freedoms of expression and association, freedom of the press, the public’s right to access information, and the right to counsel. You will not be surprised that it’s not looking good for human rights, democracy or the U.S. Constitution.
With Liberty to Monitor All: How Large-Scale US Surveillance is Harming Journalism, Law, and American Democracy reveals that reporters, especially those covering intelligence, national security, and law enforcement, see a growing climate of fear and reluctance among their sources to talk even about unclassified matters. Even questions asking for explanation of a public policy are met with trepidation. Many journalists interviewed feel compelled to take elaborate measures to protect their sources and attempt to keep their communications secure. Some are resorting to ‘burner’ phones, computers which never connect to the internet, and encryption programs like TOR.
Even relying on face-to-face meetings – nearly impossible in today’s world – reporters remarked that they simply cannot guarantee confidentiality for their sources. This creates unprecedented challenges for developing new sources willing to reveal details of government wrongdoing, another nail in the coffin of public accountability. Obama’s Insider Threat Program trains federal officials how to identify leak-prone staff and turn them in, intensifying the fear of making information public. Noting the devastating consequences of stepped-up government retaliation against whistleblowers, including harassment, firing, and criminal prosecution regardless of whether it is warranted, the report cited the “eight criminal cases against sources [under the current administration] versus three before [under all previous administrations combined].”
Of particular concern for the press – the only profession named in the Constitution given its unique role in a democratic society – is indiscriminate information sharing between the NSA and the Department of Justice, the agency which prosecutes leaks. If DOJ can access any and all electronic exchanges via NSA databases, then any and all correspondence can ultimately be exposed, and bring ruin to the public servant. Overall, the impact is a clear chilling effect and reduced coverage of important public interest stories. “Every national security reporter I know would say that the atmosphere in which professional reporters seek insight into policy failures [and] bad military decisions is just much tougher and much chillier.” — Steve Coll, staff writer for The New Yorker and Dean of the Graduate School of Journalism at Columbia University, February 14, 2014
Worried, Anxious and Confused: Impact on Due Process & the Right to Counsel
While the press has long been grappling with government secrecy, the legal profession is just beginning to grasp the impact of pervasive surveillance on legal practice, and on the Constitutional rights to counsel and due process. In an era when speech, assembly and due process are under attack, the right to counsel matters more than ever. Until recently, attorneys have operated with the understanding that the attorney-client privilege is sacrosanct.
After the Snowden revelations of the last year, many are now coming to grips with the fact that the NSA is in fact retaining privileged communications, undermining the confidentiality of information on active legal cases. According to ACLU-HRW interviews, attorneys are worried, anxious and confused. Like reporters, they are uncertain about whether and how they can fulfill their professional obligation to keep client communications secure and also protect their legal strategy from an interested government, especially in cases involving terrorism, drug prosecutions, or international companies where the U.S. might have a financial interest. In one case, the FISA court actually authorized the wiretapping of defense attorneys representing clients facing terrorism charges, unbeknownst to the parties.
We suspect any case with political implications – a la Chelsea Manning or other whistleblowers for a start – would be vulnerable to government surveillance of legal strategy, and communications with witnesses, co-counsel, and co-defendants. Indeed, Breach of Privilege, an April, 2014 report by the National Lawyers Guild, documents decades of government surveillance of attorney-client communications, especially targeting radical lawyers and their activist clients. Functional legal defense is another key element in a democratic society and – as the ACLU-HRW report found – mass surveillance ‘undermines the adversarial process, a core element of the US criminal justice system.’ The report also illuminates the First Amendment rights of public officials to share information with the public and that the public’s right to know is inextricably linked with the right to speech and assembly. These links are also recognized by international law and the UN Human Rights Commission.
A brief summary of the recommendations is below (see this link for more details).
1. end large-scale surveillance practices that are either unnecessary or broader than necessary to protect national security or an equally legitimate goal;
2. strengthen the protections provided by targeting and minimization procedures;
3. disclose additional information about surveillance programs to the public;
4. reduce government secrecy and restrictions on official contact with the media;
5. enhance protections for national-security whistleblowers.
DDF fully endorses these recommendations and has been covering the ‘war on journalism’ and the tightening restrictions on federal employees (see e.g. Clapper’s New Rule). And it is worth pointing out that journalists and lawyers also have Constitutional rights to speech, expression and due process. We have seen how the government persecuted defense lawyer Lynne Stewart and is poised to harass – at a minimum – national security journalist Glenn Greenwald to name just two. They too are dissidents. And we anticipate that these two professions so critical to democracy may be increasingly in the line of fire if the power of the Security State continues to rise unabated.