Tapping into the reporter’s notebook

From the Fall 2008 issue of The News Media & The Law, page 10.

Chris Hedges, who writes for The Nation, tells this story about government wiretapping and a spooked source: He was on the phone recently with an American service-member in Iran who was about to describe a confrontation between a U.S. airship and an Iranian oil rig. But first the source asked Hedges if he could be sure the conversation wasn’t monitored.

Hedges couldn’t promise. So the guy refused to talk. And Hedges never wrote the article.

But Hedges wasn’t surprised. Many sources have been afraid to talk to him since it became common post-Sept. 11, 2001 knowledge that the federal government monitors communication between U.S. citizens and people abroad.

When The New York Times broke the story in 2005 of the Bush Administration’s secret policy of wiretapping the telephone conversations and e-mail of American citizens, without any judicial oversight, it was particularly chilling news to Hedges and others in the relatively small but critical group of journalists who rely on international sources.

Three years later, far from a dead practice, warrantless wiretapping has received the stamp of legitimacy in July, the government’s spying program was signed into law.

The implementation and legalization of warrantless wiretapping is just one part of President Bush’s legacy that has impinged upon a free press. Though proponents of the surveillance program say it is a necessary tool in fighting terrorism, it has severe ramifications on the ability of reporters to interview international sources.

“The fear that his communication with me was being intercepted by the government essentially shut the story down,” Hedges said in an interview. “(The wiretapping policy) makes any account that deviates from official versions of events very difficult for reporters to get. The work of a good reporter is to uncover, in so far as he can determine, the truth. That becomes extremely difficult under (this summer’s) FISA bill.”

Evolution of FISA

The government has conducted foreign surveillance as a means to investigate terrorism for years. But prior to 9/11 and prior to the Bush Administration, the surveillance was conducted with judicial oversight.

Enacted by Congress in 1978 to regulate eavesdropping on foreign targets, the Foreign Intelligence Surveillance Act has over the years tilted away from its intended balance between privacy and national security concerns. The law initially required government officials looking to eavesdrop on an American citizen’s conversations to obtain a warrant from a secret court it created using federal judges. To get that warrant, the government had to show the target of the surveillance was a foreigner and that any intrusion on an American’s privacy would be minimized. Only foreign intelligence-gathering could justify listening in; a criminal investigation was not good enough.

But as in many facets of governance, the attacks of Sept. 11 altered the wiretapping landscape. President Bush moved swiftly to broaden the scope of what government could legally do, authorizing the National Security Agency to eavesdrop on American citizens who communicate with alleged foreign terrorists even without warrants.

Starting shortly after Sept. 11, the NSA’s new secret wiretapping program only required a “shift supervisor” to determine that one party in a phone or e-mail conversation was affiliated somehow with al Qaeda. When The Times pulled back the curtain on the program in 2005, it revealed that officials in the wiretapping program had spied on hundreds, possibly even thousands, of American citizens.

ABC News this fall personalized this ongoing story with interviews with two former intelligence officials who admitted they had listened in on and recorded private phone calls of American journalists, aid workers and military officers. The Senate Intelligence Committee is now investigating those allegations.

But back when The Times first broke the news, the American Civil Liberties Union followed up with a lawsuit in 2006 against the NSA on behalf of a group of lawyers, journalists and human rights groups claiming that Bush’s secret wiretapping program was unconstitutional. The ACLU wanted foreign surveillance regulated through the judicial system, as it had been before.

The journalists, specifically, complained in the lawsuit that the secret wiretapping program undercut the First Amendment. Among reporters who depend on international sources reachable only by phone or email, concern ran deep that government spying would reduce the flow of news by scaring their sources out of speaking.

Ultimately, the U.S. Court of Appeals in Cincinnati (6th Cir.) dismissed the ACLU’s case, saying the plaintiffs hadn’t made the requisite showing that they had personally been eavesdropped upon. The Supreme Court refused to hear an appeal. Meanwhile, dozens of other lawsuits were cropping up in the courts, most against telephone companies for abetting the surveillance.

President Bush defended the warrantless wiretapping program in the name of national security. Finally this year, the program received the stamp of congressional approval, with both the House and the Senate passing amendments to FISA legalizing the warantless policy and granting legal immunity to the telephone companies who help the government conduct surveillance.

President Bush signed it into law in July.

In the bill, Congress delineated new procedures for monitoring conversations: The attorney general and the director of National Intelligence can now authorize immediate surveillance between American citizens and others if they find it is necessary to protect national security interests. Though the new law requires FISA court approval, that approval does not need to be obtained until a week after the surveillance has begun.

And even if the FISA Court denies the government’s request, the new law allows the government to continue surveillance while an appeal is pending. Additionally, the new law no longer requires the government to identify people being monitored or the reasons for the surveillance, something the Fourth Amendment and the old FISA law required.

Shortly after the new law was signed, the ACLU followed up with another lawsuit in federal court in New York, arguing that the FISA amendments are unconstitutional. The case is pending.

Impact on reporters

The Nation’s Hedges is one of the plaintiffs in that case. He says the only way he will be able to regain trust among international sources is if the FISA law is knocked down.

“I can’t in good conscience tell anyone that I’m communicating with that every aspect of our conversation is not being followed by the government,” Hedges said.

“The FISA reform act should never have been passed,” he said. “It’s an egregious assault on our civil liberties.”

Naomi Klein, a reporter who also writes for The Nation and has written several books, is the other journalist named in the ACLU’s lawsuit. She echoed his fears in a court filing challenging the original wiretapping program that many of her sources fear for their safety if their identities become known.

“Some of the people I speak to believe that the exposure of their political activities would make them vulnerable to retaliation by their own governments,” Klein said in a court affidavit. “Many of the people with whom I speak live in countries that have criminalized peaceful social protest and dissent. Some have been persecuted, imprisoned, and even physically attacked for their political activities in the past.”

Because of government spying, now legalized, she said sources who would otherwise have been forthcoming are shutting her out some even viewing her now as “an extension of the U.S. government’s intelligence community,” she said.

“The new surveillance law compromises my ability to gather information and therefore compromises my ability to do my job,” Klein said in the court papers.

But for all the concern, it does seem that even a curbed flow of news will find a way to get out. James Risen, who along with Eric Lichtblau won a 2006 Pulitzer Prize for uncovering the NSA program in The Times, said fear of wiretapping had indeed made people reluctant to talk over the years. But, he said, it seems the concern is already abating.

“I have tried to be more careful,” Risen said in an interview. “People still want to talk though. The fear factor wasn’t there as much as before because Bush is on his way out.”