Many Americans, unfortunately, are naive about the danger of excessive powers of surveillance to their rights of free speech and press.
This naivety about intelligence, surveillance and press freedom is a real problem for the press, as illustrated by the decision to haul James Risen, a New York Times reporter, before a grand jury to divulge his sources for a story embarrassing to the CIA.
At a recent hearing, an intelligence official's answers to questions about privacy safeguards for Americans during intelligence eavesdropping were all classified. The recent decision to prosecute an NSA whistleblower followed his release of information showing the NSA favored data mining methods with poor privacy safeguards.
Several years ago, a Washington journalist got in hot water from the Justice Dept. for revealing that he, the proprietor of a small media concern, had received a National Security Letter for data about himself with the proviso that he not tell anyone (including himself) about the snooping.
What in the world was the FBI doing issuing such letters for journalist records? The FBI has also said that post-9/11 rules make it easy to look at reporter phone records in leak probes.
Of course, these things are the tip of the iceberg.
If a reporter is deemed a national security risk, he or she can be subjected to blanket surveillance -- perhaps for years on end. Now it may be that a legitimate terror or spy probe is in progress. But there is little to restrain the watchers from interfering in the journalist's work for political reasons. Since the burden of proof is on the reporter to demonstrate meddling and since state secrets and other rubrics can be used to block proof, there may be little a journalist can do.
In 2003, Philippines authorities intercepted an unclassified FBI lab report sent to AP reporter John Solomon in the United States. Customs officials (allegedly) opened the package and turned the contents over to the FBI, which kept the contents, considering it bureau property, without telling the AP.
Implication: journalists were under surveillance, the FBI knew the package was in the mail, and it simply seized it without a warrant.
The data Solomon might have used in a news report was kept from the public, at least for a while.
Of course, Solomon, being a reporter for a large news organization, had advantages that helped in the eventual exposure of the warrantless impoundment of mail.
In fact, if national security letters and other monitoring tools become annoying, large media can complain to lawmakers, and such doings will quietly be halted. But, for smaller, less powerful media, no such disincentives exist. Hence national security surveillance can easily be used as a tool for rewarding big cooperating media at the expense of smaller independent media.
Now reporter shield laws are certainly necessary. But more protections are needed. Here are some ideas:
Surveillance of anyone -- by intelligence, law enforcement or security authorities -- who is or has ever been a journalist should require federal court authorization. The surveillance must cease before six months have elapsed. An application for renewal of the surveillance requires assurance that the case will be concluded at the end of the second six months. Contracting out surveillance to private entities would be prohibited. No open-ended surveillance operations would be permitted.
After the matter is concluded -- which it must be by the end of the second year -- the target of the surveillance must be officially informed of the surveillance, being told of types and lengths of surveillance and other pertinent details.
Any official who violates these safeguards would face criminal penalties, including fines and periods of incarceration.
No National Security Letter shall be issued if the subject is or ever has been a journalist, or is to a reasonable mind a whistleblower or a writer doing research for a book or other form of press.
These protections shall apply to all U.S. citizens and resident aliens. If there is a question about a target's citizenship status, a court shall give the intended target the benefit of the doubt and order protection via this journalistic shield law.
This federal law would also apply to state and local authorities.
Prior to enactment of such a bill, most of these protections could be imposed without congressional action by the attorney general or the president.
The likelihood of such a bill becoming law however is at this point slim. A federal shield law for reporters sailed through the House but has been mysteriously bottled up in the Senate. It would be a good idea to include a retroactivity clause, as Congress did to protect communications companies from lawsuits filed over failure to obey wiretap laws.
Such a clause would protect James Risen, a New York Times reporter, from a Justice Dept. attempt to get him to reveal who blew the whistle to him about a CIA caper involving Iranian nuclear science.
Considering the massive clandestine surveillance capabilities of the CIA and its auxiliaries, it is quite likely the feds have a very good idea who the leaker is. However, they don't want their surveillance to come to light, so they need a cover story -- i.e., testimony from Risen -- for pursuing the leaker in court.
What is really going on here? The feds dropped the Risen matter during the Bush administration but now it's resurrected. OK, true William Welch III, the prosecutor discredited in the Ted Stevens affair, may be indulging a personal vendetta against the press in calling Risen before a grand jury and setting up another Judith Miller-type confrontation. Yet, Attorney General Eric Holder had to OK the move.
Washington insiders of course will not have missed that the targeting of Risen comes in the wake of the Times making press censorship a running story. Are we seeing control freak countermeasures? Egad! We have to make an example here in order to contain these free-press morons!
Holder's move should be seen in light of a story by Josh Gerstein and Patrick Gavin in Politico, which tells of an increasingly abrasive relationship between a White House excessively anxious to control the message, and White House correspondents. Apparently the White House attempt to delegitimize Fox News was only a slice of a bigger pie.
The press's best bet is massive retaliation. Let's have a scandal of the day. Don't worry, there are plenty of skeletons in them thar D.C. closets.