Free press and other civil rights advocates have encountered setbacks during recent days that included a federal appeals court decision that leaves in place continued mass electronic surveillance of the public.
Separately, the Associated Press (AP) and the Reporters Committee for Freedom of the Press sued the FBI Aug. 27 seeking records on FBI impersonation of journalists and warrantless surveillance.
Today’s column summarizes the importance of these court battles and the separate recent reverses in the news industry’s ability to serve as watchdog over government.
For example, the Columbia Journalism Review (CJR) this week published a column describing how digital media increasingly bear the burden of fighting the government for release of information under Freedom of Information Act (FOIA) law. A separate CJR column reported the demise of the University of Maryland-based American Journalism Review (AJR).
This editor spoke about these developments at a meeting of the American Society of Journalists and Authors (ASJA) Aug. 28 at the National Press Club and also the previous evening during a cablecast news interview by RT. News reports relevant to these themes are appended to this column.
After Edward Snowden’s whistleblowing in 2013 about abuses against the public by the National Security Agency (NSA) we published Backgrounder on Obama’s Big Data Domestic Spying System.
Last month, we published Feds Crushed Telecom CEO Who Protected Customer Data from NSA Snoops…But He’s Back, Protesting New Reform Law, a chilling first-person report by former Qwest Communications Chairman and CEO Joseph Nacchio.
Nacchio argued that recent “reform” legislation will not protect the public against pervasive electronic surveillance by the federal government. In a photo by freelancer Noel St. John used with permission, Nacchio is shown delivering remarks at the National Press Club July 27 in a news conference the Justice Integrity Project helped arrange.
He asserted that abuse by the U.S. federal government poses a greater threat to the American public than terrorism.
More specifically, he cited evidence that the Bush and Obama administrations misuse their new surveillance tools to prosecute for political reasons innocent people regarded as impediments to the state.
Nacchio’s expertise includes running one of the nation’s largest providers of telecom and IT services for the federal government. In recognition, President George W. Bush (shown in an official photo) and his new Federal Communications Commission Chairman Michael Powell appointed Nacchio in 2001 to chair two national advisory commissions on telecom infrastructure.
With that warning in mind, we can focus on the surveillance case: A three-judge panel of the District of Columbia U.S. Circuit Court of Appeals court ruled Aug. 28 that a trial judge exceeded his authority by enjoining the NSA in 2013 from spying on large segments of the public without probable cause.
An all-Republican panel ruled that plaintiffs in Klayman v. Obama had not proven they were monitored. So, the plaintiffs were denied legal standing for relief against rights violations because they cannot prove the government spied upon them personally in harmful and illegal ways.
The judges ruled 2-1 that plaintiffs should be permitted to try to prove their standing in future proceedings in advance of the ultimate argument on whether the spying is unconstitutional.
Yet the ruling acknowledged also a potentially unsolvable bureaucratic problem for the plaintiffs (sometimes referenced elsewhere as a Catch 22, derived from a novel by that name): The government has created a “State Secrets” protection preventing citizens from pursuing discovery to learn about arguably illegal spying against them.
Therefore, anyone’s practical ability to enforce privacy rights under the tight legal “standing” requirements becomes almost impossible, except for an occasional inadvertent disclosure via such means as investigative reporting with leaks by whistleblowers who are being ruthlessly tracked down and imprisoned with the new tools of electronic surveillance.