“The Same Old Stink Of Insinuation”: Hillary Clinton’s Emails; Is This A Scandal? Or A ‘Scandal’?
To someone who has watched many “scandals” that were expected to ruin Hillary Rodham Clinton evaporate into the Washington mist — even after a Pulitzer Prize-winning New York Times columnist predicted she would end up in prison! – the current furor over her email habits hardly seems earth shaking.
Now it isn’t unreasonable to ask public officials to conduct public business on government email accounts, but there was no such ironclad rule when Clinton became Secretary of State. In hindsight, it might have been better for her and the public if she had done so. Yet many prominent people, both in and out of government, have preferred private email, in the belief that those accounts provide stronger encryption and safeguards against hacking.
So far, the former Secretary of State doesn’t appear to have breached security or violated any federal recordkeeping statutes, although those laws were tightened both before and after she left office. She didn’t use her personal email for classified materials, according to the State Department. The Government Executive magazine website nextgov.com offers an admirably concise review of the legal and security issues here.
Certainly Clinton wasn’t the first federal official or cabinet officer to use a personal email account for both personal and official business, as most news outlets have acknowledged by now – indeed, every Secretary of State who sent emails had used a personal account until John Kerry succeeded Clinton in 2013.
As for the issue of archiving Clinton’s emails, which is required by federal regulations and law, the Washington Post suggests that she violated an Obama administration edict by using her own account. But that was still “permissible,” according to the Post, “if all emails relating to government business were turned over and archived by the State Department.”
Did Clinton – or more to the point, someone with line responsibility for such bureaucratic housekeeping – observe that rule? Last year, the State Department requested that all of the living former Secretaries of State turn over relevant emails for its archives. To date, only one of them has complied: Hillary Clinton. Her aides provided more than 50,000 emails to the government – and sent about 300 to the House Select Committee that is still investigating Benghazi.
Angry Republicans on that committee, plainly frustrated by years of failure to find any evidence that incriminates Clinton or President Obama in the loony conspiracy theories cherished by Tea Party Republicans, are behind the email stories first published by the Times. In fact, Clinton’s use of a private account has been publicly known for nearly two years — but that fact didn’t seem to trouble the Republicans until now, as she prepares to run for president. And today the House Government Operations Committee, chaired by Rep. Jason Chaffetz — a right-wing extremist whose own business card lists his Gmail address – is poised to take up the “investigation.”
This unappetizing scenario is most reminiscent of the bad old days, when a House committee chair “investigated” the tragic suicide of White House aide Vince Foster by pumping several pistol rounds into a watermelon in his back yard. Back then, various Senate and House committees chaired by Republicans endlessly “investigated” Whitewater, the FBI files, and other putatively scandalous matters, at a cost of tens of millions of dollars, with no purpose beyond selective, salacious leaks to reporters at the top newspapers and networks. Then everybody would feign outrage for a day or a week or a month, until the latest whatever passed into oblivion.
Someone might ask the congressional Republicans (and their media enablers) what they expect to find now. Is there any evidence of actual wrongdoing by Clinton and her staff – or merely the same old stink of insinuation? Will they seek testimony from former Secretary Powell, former White House aide Karl Rove — whose RNC.com emails mysteriously disappeared before a prosecutor could obtain them – or any of the thousands of other ex-officials who have used private email addresses to conduct government business? Or will they simply continue a political hunting expedition with taxpayer millions, which is what they seem to believe they were elected to do instead of governing?
By: Joe Conason, Editor in Chief, Editor’s Blog, The National Memo, March 4, 2015
“Snowden, Go Home”: His Unfinished Business Is In A U. S. Courtroom, Not A Moscow Suburb
Edward Snowden, leaker extraordinaire of classified NSA documents, is said to be seeking an extension of his political asylum in Russia, where he has resided, beyond the reach of US jurisdiction and under legal protection granted by Vladimir Putin personally, for a little over one year. Snowden seems to be settling in for the long haul as a fugitive expatriate.
He is making a mistake. At some point Snowden must return to the US and face the criminal charges pending against him. By postponing this reckoning, he adds to skepticism about his motives. More important, he diminishes his legitimacy as a whistleblower who broke the law to expose government overreaching, change official policy, and vindicate principles of government transparency and individual privacy.
Snowden has portrayed his accessing, copying and distribution (to selected journalists) of NSA records as acts of conscience-and so they may have been. Civil disobedience is a time-honored form of protest, particularly in a democracy. But civil disobedience is not painless; it is not a get-out-of-jail free card.
Civil disobedience assumes-in fact, requires-submission to legal processes: to trial and possible punishment. This, the painful part of civil disobedience, is what distinguishes morally-just protest, on one hand, from mere law-breaking, on the other. Think of Martin Luther King, Jr.
Think also of James Risen, a New York Times reporter who faces sanctions, including jail, for his civil disobedience in defying a court order. Risen has been waging a legal battle to protect his confidential sources for a book revealing classified information on US intelligence operations in Iran. Having appealed all the way to the Supreme Court, to no avail, Risen has run out of legal options (although the Justice Department has hinted that it might back off of enforcing its subpoena demanding Risen’s testimony about confidential sources).
Snowden’s situation and Risen’s are very similar. Both Snowden and Risen are in trouble for disclosing classified information. Snowden has been indicted, while Risen is subject to a court order (that remains intact after multiple appeals). Snowden has fled the country, escaping (at least for now) any legal consequences for his actions. The morally equivalent choice for Risen would be to renege on his promise of confidentiality and to provide sworn testimony to government prosecutors.
The likelihood of Risen, a principled and professional journalist, betraying his source to avoid jail–is zero. For Snowden, too, the moral choice is clear. To legitimize his violations of federal law as acts of conscience, he needs to face the consequences, not run away from them.
If Snowden, instead of going public with his information, had decided to leak his NSA documents on a confidential basis to journalists at The Guardian and the Washington Post, those journalists would today be in the same boat as the New York Times’ Risen-under subpoena and facing prison or other serious sanctions for refusing to comply. Why, then, should the expectations be so different for Snowden?
Snowden no doubt fears going to prison. Who wouldn’t? But Snowden, if he returned to the US, would receive a trial that is not only fair, but a model of due process. Media interest would be off the charts. That would maximize transparency in all court proceedings–which, in turn, would pressure prosecutors to exercise restraint.
Snowden would have the very best criminal defense lawyers in the country (regardless of his ability to pay them). And those lawyers would make the most of the government’s dilemma: having to prove harm to national security, but without revealing sensitive information that could cause still more harm to national security.
Snowden’s lawyers will also insist that he cease all public comments. No more press conferences via Skype, no Twitter or email, no calls with reporters. Total silence, giving his lawyers control over his message and image. For Snowden, who clearly loves the sound of his own voice and delights in dealings with the media, such muzzling may be hard to abide. Still, it’s not a reason for staying on the lam.
Snowden’s unfinished business is in a US courtroom, not a Moscow suburb.
By: Peter Scheer, Executive Director, First Amendment Coalition, The Huffington Post Blog, July 16, 2014
“We’re All Journalists Now”: No, Glenn Greenwald Cannot Be The One Who Decides What Stays Secret
This Sunday, The New York Times Book Review will finally print Michael Kinsley’s review of Glenn Greenwald’s No Place to Hide, two and a half weeks after the review was published online and provoked a polarizing debate involving Greenwald, the Times‘ Public Editor Margaret Sullivan, Kinsley again, and countless commentators who promptly took sides in the dispute about government secrecy and freedom of the press.
Some readers, including Sullivan, objected to Kinsley’s smart-alecky tone and psychological sketches of Greenwald, Edward Snowden, and Julian Assange, which these critics saw as bordering on ad hominem attacks. But there were also more substantive criticisms levied by Sullivan and many others, most of them boiling down to the claim that it was simply outrageous of Kinsley to deny journalists an absolute right to print classified material passed on to them by leakers.
Here is the most controversial passage from the review:
It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald. [The New York Times]
Some objected to this passage because they thought it contradicted another line of the review in which Kinsley called the Snowden leaks a “legitimate scoop.” But for most critics, the issue was far more fundamental: How dare anyone suggest, and in the pages of America’s newspaper of record no less, that the government, and not an intrepid journalist like Glenn Greenwald, should get to decide, while wielding threats of prosecution and imprisonment, what information is secret and what is not?
Clearly, the critics implied, Kinsley was expressing a deep-seated sympathy for authoritarianism that no self-respecting American citizen, let alone a journalist professionally and existentially devoted to the press freedoms enshrined in the First Amendment, could possibly endorse.
There’s just one problem with this objection: Kinsley was almost certainly correct.
In the ensuing debate about the review, The Atlantic‘s Conor Friedersdorf made the strongest and most concise case against Kinsley’s position. When we look at the competing track records of the government and journalists in deciding what should be kept secret and what should be made public, Friedersdorf argued, it is clear that journalists have done a far better job. For that reason, journalists, and not the government, should get to decide.
Friedersdorf also made a point of stipulating that this does not imply blanket permission for leakers to divulge to journalists any information they wish. In Friedersdorf’s words, “The least-bad system is one where leakers can be charged and punished for giving classified secrets to journalists (which isn’t to say that they always should be), but where journalism based on classified information is not criminalized.”
That sounds like a perfectly reasonable compromise — at least until you think it through.
Permitting journalists to publish anything and everything that gets leaked to them, under no possible threat of prosecution, would make it nearly impossible to prosecute a leaker, since the harmlessness of the leak would automatically be demonstrated the moment a journalist makes the decision to publish the classified information. After all, in Friedersdorf’s least-bad system, it’s journalists who decide what can and can’t be made public, based in part on their assessment of the likely public harm. This means that as soon as classified information gets published by a journalist, the leaker would instantly be exonerated.
To which many will no doubt respond: So what? That’s exactly how it should work!
Except for one additional consideration, which Kinsley raised in his original review. In the age of blogs, portable audio and video recording, instant messaging, and social media platforms, “it is impossible to distinguish between a professional journalist and anyone else who wants to publish his or her thoughts.”
We’re all journalists now.
In such a world, Friedersdorf’s rules produce a situation in which any leaker who leaks any information to anyone willing to publicize it is automatically absolved of any crime.
In such a world — a world completely lacking in disincentives to leak classified information — government secrecy would be rendered impossible.
“But no,” I imagine Friedersdorf objecting. “I mean real journalists, working for established, recognized media companies. Only they should be given the power to decide what to publish.”
To which the proper reply is to repeat Kinsley’s line that making such a call — deciding who is and who is not a “real” journalist — is impossible. Sure, we can agree that a journalist employed by The New York Times or The Atlantic is an authentic journalist entitled to make the hard calls on secrecy. But what about a reporter working for BuzzFeed? Or a reporter working for BuzzFeed six years ago, when it had little politics coverage and was known primarily for its cat-photo click-throughs?
And what about self-employed blogger Andrew Sullivan? Is he a journalist? If someone leaked classified information to him, should he have blanket authorization to decide whether to publish it?
What about someone who runs a blog with a tenth of Sullivan’s traffic and journalistic experience? A hundredth? A thousandth?
We seem to have a problem. Either anyone or everyone gets to make the call, rendering state secrets impossible, or we need some independent authority to decide who is and who is not empowered to make the call. Government licensing of journalists? That’s where Friedersdorf’s “least-bad system” leads us, I’m afraid.
Which means that Friedersdorf leads us right back to Kinsley: “Someone gets to decide, and that someone cannot be Glenn Greenwald.”
Pace Friedersdorf, the least-bad system is the one we have right now: Government (elected officials, appointees, and judges) deciding what gets and stays classified. In that system, both leaking and publishing classified information are treated as crimes, albeit crimes for which leakers and journalists are rarely punished, with the benefit of the doubt usually swinging in their favor.
This system isn’t perfect. Free speech absolutists don’t like it, and understandably so, because it makes government secrecy the legal principle and press freedom an exception dependent on the prudential judgment of prosecutors and judges.
But in a world where secrets are necessary, this may be the best that a democracy can do.
By: Damon Linker, The Week, June 6, 2014
“The Naivety Of An Ideologue”: Leaker Or Leader? Edward Snowden Claims Victory
In an interview last week with NBC’s Brian Williams, NSA secret-leaker Edward Snowden set himself a low bar and claimed success: His leaks, he said, have gotten us talking about these important issues. Mission accomplished? Let’s think about that…
While Snowden has in fact displayed several admirable leadership qualities – like taking bold action, operating in integrity with his stated beliefs, and communicating (to Brian Williams, anyway) with gravitas – he, like many would-be-good leaders, has fallen short in the results department.
Good leadership takes balancing cost versus benefit to achieve something. The measure of such a costly breach of national security as Snowden committed, then, should be significant positive change, rather than fresh fodder for our hapless Congress and paying NBC’s bills for a few news cycles.
For example, could there follow from all of this, say, a thorough and unbiased audit of our intelligence services showing specifically if, and in what ways, the US Government discarded its checks and balances and/or hindered our constitutionally-guaranteed protections and freedoms? Such an audit could then result in positive reforms.
Similarly, for the US Government to be the leader here, it would need to show, rather than simply assert, that Snowden’s admittedly criminal actions have created harm, and also show that it has used its powers in strictly constitutional ways.
Neither will happen. Instead, Snowden’s sensational actions reflect the naivety of an ideologue: Someone intensely devoted to a cause, yet guided more by the image of perfection than by the real world. This “national conversation” is more likely to fester and fizzle than to lead to policy reform — after all, that’s the status quo state of the union these days.
Whether he was a patriot or a traitor in leaking NSA secrets is a dumb question being asked by smart people in the media who know better, but need to sell cars and paper towels. Patriot or traitor? He is, as are those in government guilty of “overreach,” both and neither. The two sides here are more alike than not.
I’m not suggesting that whiste-blowing isn’t important to our democracy — it is. Nor am I saying it’s Edward Snowden’s responsibility to make any needed changes. Yet if something productive beyond dialogue is to come of this, then we’ll need actual leadership.
That’s the challenge when it comes to the dark arts of intelligence. We can’t and shouldn’t ever know what great leadership looks like when it comes to the content of collecting and analyzing intelligence to prevent violence and terrorism. Yet if Snowden’s actions are to be seen as good leadership, then bring it on, Snowden: Let’s see the benefits that more than cover the costs of what you have done.
By: David Peck, Politics Blog, The Huffington Post, June 1, 2014
“This Is Not A Binary Argument”: The Debate Has To Be Deeper When National Security And American Lives Are Involved
Elias Isquith is correct that the fundamental distinction between Glenn Greenwald and his critics is based on how each, respectively, views the current state of the American government. Those that consider our government to be as rotten and illegitimate as France’s Ancien Regime or the Tsar’s Russia are not particularly troubled about defining the correct journalistic line between informing the public and compromising national security.
Defenders of the government are not done any favors by allies like Michael Kinsley, who manages to do little more than arouse sympathy for Greenwald’s side of the argument. Kinsley’s thesis is so sloppy that it allows Greenwald to define himself as engaging in an honest journalistic enterprise that his detractors would make illegal. That kind of dichotomous argument is one that Greenwald could never lose.
The debate ought to be deeper than this. If our national security state is engaged in activities that are not authorized by law, and if they are conducting themselves in ways that do grave damage to our international relations when they are disclosed, do they then forfeit the deference they are otherwise given on what does and does not harm national security?
One of the difficulties here is that when our leaders do things that when disclosed will harm our national security, they aren’t the only ones who are negatively impacted. All Americans are put at risk when our national security is harmed. A journalist has to weigh the benefits of public disclosure versus the potential risks to the general public, and this is a very subjective exercise. That is why people on Greenwald’s side are so intent on countering the idea that the disclosures of Chelsea Manning and Edward Snowden have done any actual, demonstrable harm.
Too often, it seems to me, Greenwald and his strong supporters behave as if the government deserves to be damaged and that our national security ought to suffer, even though all Americans are put at risk as a result. The risk to Americans is not something that can just be shrugged off as if it were indisputable that the country has gained a net-benefit from every single disclosure of classified information.
The reason that Greenwald is getting the better of the argument isn’t because his principles are clearly superior, but because the government lacks credibility. The overall effect of the disclosures has been beneficial, at least so far, because nothing catastrophic has resulted and we now have greater knowledge about what our government has been doing, which is already leading to reforms.
But none of this relieves journalistic enterprises of the responsibility to weigh the risks and benefits of disclosing classified information, nor does it completely vindicate either Chelsea Manning or Edward Snowden, who both leaked far more information than was necessary to make their points.
By: Martin Longman, Washington Monthly Political Animal, May 24, 2014
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