A Response to The Banter's Michael Luciano on Greenwald, Journalism and the NSA

The ongoing NSA debate continues in the pages of The Daily Banter. Bob Cesca responds to Michael Luciano's assertion that Cesca's latest on Greenwald and the NSA was "unfair" and perhaps "dangerous."
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The ongoing NSA debate continues in the pages of The Daily Banter. Bob Cesca responds to Michael Luciano's assertion that Cesca's latest on Greenwald and the NSA was "unfair" and perhaps "dangerous."
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Throughout the past year, the central angle in my articles about the NSA/Snowden/Greenwald story has been one of journalistic criticism. For the last 25 years, I've worked in print, digital and broadcast journalism and therefore it's naturally among my primary areas of expertise, alongside politics and so forth. Consequently, I've developed a reasonably strong understanding of what constitutes both solid and shoddy reporting, not to mention the ability to recognize the differences between tabloid, hard news and opinion journalism.

Consequently, the vast majority of my posts about Greenwald and others have been based almost solely upon observations regarding the quality, or lack of quality in the journalism taking place around what's been described as one of the most important national security stories of our time. In doing so, I've noted several areas that are badly lacking in the Snowden-based reporting:

1) Context
2) Evidence
3) Objectivity

At least one of these items is invariably missing from the cavalcade of NSA stories, especially when it comes to Greenwald's work. 1) Seldom is there context for the Snowden files presented. 2) There have been scant few articles showing evidence of wrongdoing by the government. And, 3) Greenwald's reporting is basically an objectivity-free zone (fine for blog posts or op/eds, but not hard news), the unethical and horrendously misleading headline in his latest article is an obvious example.

In the digital, social media age, it's increasingly obvious that context, evidence and objectivity have become less relevant in the second-to-second fight for clicks and traffic.

So these criteria yet again became the central theme of my Thursday column regarding Greenwald's latest. Greenwald has often boasted that he's not constrained by the traditional rules of journalism, and it shows, especially to those of us who know our way around a newsroom. But in the course of writing the review, I don't believe I was ad hominem or unfair in terms of exposing the gaping holes in his story from a journalistic perspective. Yet that didn't prevent my colleague from The Daily Banter, Michael Luciano, from labeling my article as "largely unfair" and containing "dangerous" observations.

Let's start with this:

[Bob's article] is a largely unfair piece that relies in part on the dangerous belief that because one can’t prove wrongdoing by a government that operates in total secrecy, there is therefore no story.

The government doesn't operate in total secrecy. The intelligence community operates mostly in secret because it has to. That said, there are numerous layers of intelligence oversight including a privacy and civil liberties board (PCLOB), various congressional committees, dozens of bureaucratic layers, offices of compliance and legal counsel and not to mention the Freedom of Information Act -- a tool that's been effectively wielded by the ACLU and the Electronic Frontier Foundation. Do we even need to mention Edward Snowden's cache of documents, the likes of which could've been scoured more thoroughly to prove or disprove wrongdoing in this case?

Let's not be naive. Greenwald's entire agenda is about proving governmental malfeasance. Yet once again, he failed to show evidence to prove his thesis. Indeed, he failed to even prove his own headline, which stated point-blank that the surveillance of five Muslim-Americans "has been" going on (present perfect continuous tense, meaning now). Frankly, the deceptive headline should've invalidated the rest of the item.

By the way, I didn't say there wasn't "a story." There was. I wrote that it wasn't "a bombshell," and that "speculation isn't news." I also wrote that it "smells like news." All of those claims are accurate.

Luciano continued:

Of course, just because there’s secrecy, it doesn’t follow that something illegal or untoward is happening. After all, that’s how Alex Jones operates.

Exactly. "Secrecy" doesn't necessarily prove "wrongdoing."

But at the same time, this government has been caught engaging in enough shady and even illegal activity to warrant more scrutiny and less trust.

Shouldn't scrutiny be based upon factual citations and evidence, rather than speculation and hearsay? I also never, ever suggested that we blindly trust the government. But accountability needs to be based on factual, evidence-based assertions rather than speculation or past infractions. A quick point on this: it's fine to reference the past, but present-day accusations need to be based on a current presentation of the facts. Merely pointing to the past and superimposing those past means and motives on modern leaders might as well be a corollary to Godwin's Law and the constant Hitler references tossed around in losing arguments. Hey, a guy took over a continent and killed six-million Jews in the '30s and '40s, so Obama might be doing the same thing now! It can happen! Replace Hitler with Orwell, or FDR and internment camps, or Nixon and COINTELPRO, and there it is. Godwin revisited.

FISA warrants have been virtual rubber stamps, having denied only 12 applications out of 35,434 in the court’s 35-year existence – a 99.97% grant rate.

As I wrote in my column, Greenwald himself refuted this "rubber stamp" claim, perhaps inadvertently.

GREENWALD: According to [top FBI lawyer Marion “Spike” Bowman], whose office handled all requests for domestic FISA surveillance throughout the intelligence community, requests for warrants involve multiple stages of approval. Starting at an FBI field office, a request moves up through FBI supervisory agents at headquarters and attorneys at the bureau’s National Security Branch, then on to the Justice Department’s Office of Intelligence—with the various gatekeepers frequently rejecting applications or sending them back for further review. It is only once all the hurdles have been cleared, Bowman says, that the Justice Department prepares a formal application “package” for a judge with the Foreign Intelligence Surveillance Court. [...]

Law enforcement officials familiar with the FISA process told The Intercept that the FISC’s high approval rate is the result of a thorough vetting process that weeds out weak applications before they reach the court. The system, they added, seeks to balance what they consider to be the essential role of surveillance in protecting national security with the civil liberties of potential targets.

In addition to Greenwald himself, David Harada-Stone, a lawyer and frequent contributor to The Daily Banter commented:

If you're going to refer to FISA Courts -- whose judges are sitting Art. III U.S. District Court judges appointed by the president and confirmed by the Senate with lifetime tenure and thus presumably no more or less independent than any other federal judges -- as "rubber stamps," it would help to know how often other, non-FISA courts at the federal and state levels, approve requests for surveillance warrants. The answer would be "virtually all of the time." In 2013, judges in 27 states and 142 local jurisdictions approved 2,100 wiretap applications and denied ONLY ONE. So the question you have to ask is, are all those courts "rubber stamps" as well? http://www.uscourts.gov/Statistics/WiretapReports/wiretap-report-2013.aspx

On top of everything else on this ridiculous "rubber stamp" meme, there's also the existence of a now-unclassified 86-page FISA Court document in which a specific NSA operation was declared unconstitutional and hence discontinued -- pre-Snowden.

Regarding warrants, Luciano questioned my criticism of the following paragraph in Greenwald's post:

Last week, anonymous officials told another news outlet that the government did not have a FISA warrant against at least one of the individuals named here during the timeframe covered by the spreadsheet.

Luciano commented, "This is a claim that Bob dismisses as 'a reliable source,' but does so on no evidentiary basis." Evidence matters now? Here again, I approached this claim from a journalistic, editorial point of view.

REPORTER: "One of the men was targeted without a warrant."
RESPONSIBLE EDITOR: "How do you know?"
REPORTER: "An anonymous official said so."
EDITOR: "The official contacted you?"
REPORTER: "Not exactly. He told a reporter from a competing publication, who then told me."
EDITOR: "A competing publication, you say? Get out of my office."

Simply put: anonymous information via a competing news outlet is a horrible source for obvious reasons. Feel free to use it, but it's soft, and the assumption should be that it's wrong. An anonymous source and from a competitor -- what could possibly go wrong?

Next came the most puzzling criticism in Luciano's post. In response to my paragraph about the existence of secret warrants throughout the American legal and criminal justice system, Luciano wrote:

[Law enforcement search and surveillance warrants] are done in plain view of the public.

Perhaps this happens on TV, but not in real life. How absurd would the process be if we could simply call up a clerk or an FBI field office and ask if we're being targeted for surveillance? Imagine if, say, a Mafia footsoldier could do that. How convenient it'd be for them. After all, it happens in public, so why not?

Harada-Stone in the comments:

[T]he notion that criminal warrants are obtained in "plain view" is simply wrong. If they were, surveillance would always be pointless, as the subject would know he or she is being watched. The details of warrant applications in criminal cases usually aren't revealed until after indictments are unsealed and prosecutions are underway. That's also usually the first opportunity a subject of a surveillance or search warrant has to challenge it, i.e., after the fact.

Back to Luciano, who went on to suggest that it's okay that Greenwald was incapable of finding evidence of wrongdoing:

Just because one cannot show evidence of wrongdoing of something that’s hidden from view in the first place is a circular and dangerous argument...

But isn't that what journalists are supposed to do: report information that's generally unknown to the public? Again, even if we were to concede that it's impossible to get government officials to confirm or deny information to reporters, which they routinely do, there's always the existence of the Snowden documents. To question whether Greenwald scoured and cross-indexed other Snowden documents to determine whether the surveillance in this case was justifiable and legal is a perfectly fair question to ask. Greenwald and a handful of other reporters enjoy access to a massive tranche of top secret national security documents. Yet the article was posted without the answer to this very relevant question.

Luciano wrapped up by returning to this argument:

We don’t have to go back very far to see an example of government overreach with George W. Bush’s illegal warrantless wiretapping, or Richard Nixon’s use of law enforcement to infiltrate dissident groups for merely opposing the Vietnam War.

What's the common denominator in these examples, other than the obvious trespasses? Answer: hard evidence of the wrongdoing, incontrovertibly verified in public view. In more than a year, the only incidences of wrongdoing for which Greenwald and the others have provided evidence were weeded out and discontinued by the big bad NSA and FISA Court long before Edward Snowden came along. The rest is pure agenda-driven speculation. And that's not hard news, at least it didn't used to be hard news. But I suppose in the age of social media, hyperbole and unsourced conspiracy theories rule the day.

Greenwald boasts that he operates under the assumption that the government is lying, and then he finds documents to prove it. Just as Greenwald approaches government with skepticism and distrust, it's never a bad idea nor is it unfair to regard the modern news media, including Greenwald himself, with the same degree of scrutiny, especially considering the well-known forces that animate it. When it comes to the NSA story, there might actually be something very bad smoldering under the surface, but the articles covering the Snowden documents have been so badly constructed and so seemingly deceptive, mostly pandering to click-bait rather than evidence, it's nearly impossible to ascertain reality through the fog of manufactured drama, supermarket tabloid headlines, political agendas and the stench of bullshit. I'm frankly surprised that Michael Luciano, who's a smart guy, fell for it.

The abandonment of context, evidence and objectivity should have irreparably damaged this story a long time ago. The fact that it survives today is a testament to the efficacy of its internet-ready showmanship, hyperbole and deception. And RIP, hard news reporting.