POLITICS
07/28/2014 09:29 am ET | Updated Jul 28, 2014

Mass Surveillance Is Corroding American Democracy, Human Rights Report Concludes

Joerg Koch via Getty Images

NEW YORK -- Being a lawyer or a reporter increasingly means adopting the paranoid tactics of a drug dealer, a joint Human Rights Watch and American Civil Liberties Union report released Monday determined, with poisonous results for democracy at home and abroad.

In the wake of President Barack Obama's prosecutions of national security leakers and the revelations of former National Security Agency contractor Edward Snowden, journalists and attorneys have resorted to encrypted emails, face-to-face meetings and cash over credit to protect clients and sources.

The end result has been a drying well of voices willing to tell the truth about what the government is doing in our name, a justice system compromised by attorneys' inability to speak freely with their clients, and "a terrible example" for countries such as India, Pakistan and Ethiopia.

"The US holds itself out as a model of freedom and democracy, but its own surveillance programs are threatening the values it claims to represent," Alex Sinha, a fellow at the two groups, said in a statement. "The US should genuinely confront the fact that its massive surveillance programs are damaging many critically important rights."

The report follows in the footsteps of a November PEN survey of mostly non-journalistic writers that found many are also fearful of what they put in an email or say over the phone, leading them to avoid charged issues like the Middle East. The new report, meanwhile, comes as even allies such as Germany are increasingly expressing anger over U.S. spying.

Through interviews with 46 journalists, the report's authors concluded government sources are increasingly less willing to share information in response to revelations about the expansive U.S. surveillance state and the Obama administration's unprecedented use of the Espionage Act in targeting leaks to media outlets.

Jonathan Landay, a veteran reporter for the McClatchy newspaper chain and one of the few journalists who challenged the Bush administration's claims during the runup to the Iraq War, said, "This is the worst I've seen in terms of the government's efforts to control information."

An October report from the Committee to Protect Journalists highlighted the unprecedented measures the Obama administration, which famously pledged to be the most transparent in history, has taken to prevent unsanctioned leaks.

The New York Times' Charlie Savage said in Monday's report that "it is not lost on us, or on our sources, that there have been eight criminal cases against sources" during the Obama years, as opposed to just three under all previous administrations. The New Yorker's Jane Mayer said she "can't count the number of people afraid of the legal implications" of speaking to her.

Journalists who cover particularly sensitive beats such as national security, intelligence and justice, are increasingly using encrypted communications or buying throwaway "burner" phones to try to speak with sources in a way that won't leave an obvious digital trail. But several journalists acknowledged that these precautions aren't foolproof and the adoption of such tradecraft can make sources even more skittish.

In the report, The Intercept's Peter Maass recalled unsuccessfully asking a source to physically mail information instead of doing so electronically. "I made him aware of the danger of being connected to me," he said. "As a result, I lost that story."

Despite all these measures aimed at trying to leave less of a trail back to sources, the report found that "not a single journalist we spoke with believed they could defeat the most focused efforts by the government to discern their activities."

Adam Goldman, a Pulitzer Prize-winning reporter at The Washington Post whose work was the subject of three leak investigations while at The Associated Press, said that "if the government wants to get you, they will."

"What are we supposed to do? Use multiple burners? No email? Dead drops?" Goldman asked. "You can't be a journalist and do your job that way."

Lawyers -- particularly those in criminal defense -- felt the same way. "I'll be damned if I have to start acting like a drug dealer in order to protect my client's confidentiality," said attorney Tom Durkin.

In interviews with dozens of attorneys, the report found that many are changing their habits in ways similar to journalists. But the results are potentially even more grave in an arena where the very right to a fair trial is at stake.

When the U.S. government can pore through emails or phone calls between lawyers and their clients at will, the playing field at trials could be permanently tilted against defendants. Even corporate firms are far from safe, the report notes, citing a February New York Times report based on Snowden documents that the U.S. government was monitoring communications between an American law firm and its client, the government of Indonesia. The Intercept reported earlier this month that the government has been spying on Muslim American lawyers.

Witnesses in addition to clients are at risk, said Maj. Jason Wright, an Army lawyer who represents Guantanamo Bay detainees. The military commissions there have been plagued by fears of an FBI investigation that has probed a defense team.

"We are fearful that our communications with witnesses abroad are monitored," Wright said. Reaching out to witnesses thus "might put people in harm's way."

Citing both international law and the Constitution, Human Rights Watch and the ACLU said that Obama and Congress should take steps to curb mass surveillance now. Congress could end bulk collection such as the NSA's domestic call records program, although the report expressed caution about a weakened version of a House bill meant to do that. Obama has the authority to rein in much of the surveillance targeted abroad unilaterally by amending a 1981 Ronald Reagan executive order, the report noted.

Government officials told the human rights researchers that the safeguards in place protect both lawyers and journalists. They also argued that the costs of surveillance are outweighed by the benefits to national security.

Bob Deitz, who was the NSA's top lawyer when the George W. Bush administration developed its warrantless wiretapping program, put his view even more bluntly. National security journalists' sources, he argued, should be worried.

"Leaking is against the law. Good. I want criminals to be deterred," he said. "Does a cop chill a burglar's inclination to burgle? Yes.'"

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