Surveillance: Snowden NSA Controversy

What I Am---And What I Am Not---Saying About Laura Poitras

By Benjamin Wittes
Sunday, February 16, 2014, 8:46 PM

This morning, Jane and I posted a critique of the New York Times's very silly story about non-NSA surveillance---by one foreign government against another foreign governments---surveillance not against US persons, surveillance which did not target lawyers. The story was headlined: “Spying by N.S.A. Ally Entangled U.S. Law Firm.”

The story's dual byline included Laura Poitras, a documentary filmmaker who was one of the recipients of the Snowden documents and who does not work for the New York Times but who has freelanced major pieces for the paper using Snowden material. In introducing the critique, I described Poitras---and I want to stress that I, not Jane, wrote the passage in question and that Jane bears no responsibility for the confusion and anger that ensued---as "freelancer Laura Poitras---from whom the Times (which insists it never pays for information) sometimes procures Snowden-leaked documents and to whom it gives a byline when it does so."

The firestorm on Twitter today over this line has been something fierce, and I'm afraid I fed it by trying to clarify what I meant---which can be difficult in 140 characters. Glenn Greenwald and others have said that I made ugly accusations against Poitras as being something other than a journalist---and as not having written the story in question but merely supplied the document on which it is based. I want to say, first of all, that I certainly did not intend to imply that; I have no reason to disbelieve that Poitras meaningfully served as an author on the story and was a bit mortified to find that my phraseology might lend itself to that understanding. My apologies. It really wasn't what I was trying to say. Nor, indeed, did I mean to accuse Poitras of any misconduct whatsoever. I don't think there is anything improper about her bringing material she obtained to the Times on a freelance basis.

Here is what I am not apologizing for: I am both puzzled and troubled by a larger pattern in the journalism surrounding the Snowden affair, of which this episode is but one example. I described this anxiety at some length back in November at a conference at NYU Law School, the video of which is available here:

At NYU---in retrospect wisely---I made a point of not attaching any names to the issue. I also spoke at greater length and explained my views more fully, and nobody seemed to take offense at them. Here's the essence of what I said on this point.  We have now had two incidents---the Snowden affair and the Manning affair---in which an individual has exfiltrated huge quantities of sensitive data from the government and delivered that material, at least in significant part, to individual journalists or non-traditional journalistic outfits. If Snowden had delivered his materials to an employee-reporter of the New York Times or the Washington Post, he would have triggered a known set of relationships between the government and the press. These relationships are often tense, and they are imperfect---from the point of view of both government and the press. But there is a common understanding about what role everyone plays in them, and these roles are comparatively stable even if---as Jack has often argued---also in flux. But first Manning and then Snowden did not go just, or principally, to established media. Each did something else: Manning leaked to WikiLeaks, which then both released materials itself and brokered their release to press organizations. And Snowden picked individual journalists, who had varying degrees of affiliation with different outlets. Poitras is a true freelancer. Barton Gellman is former employee of the Washington Post who brought the material back to the Post on a contract basis. Greenwald was an employee of the Guardian, but he also wrote freelance stories for other papers based on the material, and his personal brand is so strong that he ultimately started a media organization of his own. This pattern created a genuinely unusual situation, in which someone like Poitras ends up serving at once both as a source for the Times, which only has access to documents if it deals with her, and as a reporter for the Times. She is also, by the way, a subject of reporting in the Times---for example in this lengthy New York Times magazine profile. How many other people can you think of who are at once supplying coveted material to the Times, writing news articles for it, and serving as the subject of stories in its pages as well? Come to think of it, how often does the Times put stories on its front page by people it has described (in that same magazine article) with words like these: "The Snowden story, [Greenwald and Poitras] both said, was a battle they were waging together, a fight against powers of surveillance that they both believe are a threat to fundamental American liberties." It's a genuinely odd arrangement. Now, as I said at NYU, I can certainly see the argument that this is just freelance writing, no different from any other. When a newspaper gets a freelance reporter, it gets what that reporter knows and the documents that reporter has, and it pays the reporter for her work. Sometimes, the reporter's prestige and sources and, yes, documents make her more valuable to the organization than the organization is to her. That's the world of publishing. And the difference between this situation and others is probably just one of degree. So I don't mean to say that it's wrong. It may be an increasing fact of life in the new world we are living in, a world in which a single source can hugely empower a small group of individuals relative to major media publishers. But make no mistake. These guys have media organizations over a barrel. And you don't have to take my word for it. Just ask Poitras's publisher of the day, the New York Times, which in that same magazine story described the relationship (with respect to a different news organization, of course) as follows:

Poitras and Greenwald are an especially dramatic example of what outsider reporting looks like in 2013. They do not work in a newsroom, and they personally want to be in control of what gets published and when. When The Guardian didn’t move as quickly as they wanted with the first article on Verizon, Greenwald discussed taking it elsewhere, sending an encrypted draft to a colleague at another publication. He also considered creating a Web site on which they would publish everything, which he planned to call NSADisclosures. In the end, The Guardian moved ahead with their articles. But Poitras and Greenwald have created their own publishing network as well, placing articles with other outlets in Germany and Brazil and planning more for the future. They have not shared the full set of documents with anyone.

As I say, nobody is doing anything wrong here, but I confess that I'm troubled by the power dynamics at work---for reasons that I'm sure will not endear me to my Twitter critics: I believe in institutional media. I believe in editors. And while I also deeply believe in the proliferation of voices that new media has enabled, I don't like it that Greenwald, Gellman, and Poitras have such enormous leverage against big media organizations which I expect to make responsible publishing decisions. Put simply, I am uncomfortable with the unaccountable power that this arrangement gives people like Poitras over organizations like the New York Times. And I don't really care how many people on Twitter scream at me for that view (Representative sample: "you got it, @benjaminwittes just admitted he's a believer in corpocracy, which makes him traitor to Constitution," "how dare the power be in the hands of  individual journalists and not the corporate bottom line!" "Former Professional Journalist @benjaminwittes Suggests @nytimes Shouldn’t Pay Its Journalists"). These are organizations that disclaim a political agenda. Yet the Times this morning published a front page article by a woman it has described (again, in that profile) as follows:

Unlike many reporters at major news outlets, [Greenwald and Poitras] do not attempt to maintain a facade of political indifference.

. . .

Poitras, while not nearly as confrontational as Greenwald, disagrees with the suggestion that their work amounts to advocacy by partisan reporters. “Yes, I have opinions,” she told me. “Do I think the surveillance state is out of control? Yes, I do. This is scary, and people should be scared. A shadow and secret government has grown and grown, all in the name of national security and without the oversight or national debate that one would think a democracy would have. It’s not advocacy. We have documents that substantiate it.”

And these are organizations which would, of course, never pay for information. But paying freelancers---freelancers with strong political views on the issues about which they are writing for the paper---can serve as a convenient fig leaf. One of the reasons I worry about this trend is that it is eroding the quality of editorial judgment at these organizations. Some of the stories the Post and other papers have run over the past several months have had major errors---factual and conceptual---that have gone uncorrected. And today's Poitras story, in its own small and laughable way, is an example too of how these arrangements are not helping the quality of coverage: The New York Times, after all, the paper of record, put on its front page this morning---above the fold---the shocking news that Australia spies on Indonesia and cooperates in intelligence matters with the United States.