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TIME’s Repellent Presentation of Snowden’s Whistleblowing as ‘Most Spectacular Heist’ in ‘History of Spycraft’

Screenshot from TIME.com

In 2002, TIME Magazine’s “Persons of the Year” were “The Whistleblowers.” Three women were described as “heroes at the scene, anointed by circumstance” and “people who did right just by doing their jobs rightly–which means ferociously, with eyes open and with the bravery the rest of us always hope we have and may never know if we do.”

Sherron Watkins, who was the Enron vice president, Coleen Rowley, who was an FBI staff attorney, and Cynthia Cooper, who was employed by WorldCom, according to the magazine’s cover story, risked “their jobs, their health, their privacy, their sanity–they risked all of them to bring us badly needed word of trouble inside crucial institutions.”

Plainly, the magazine stated, “As whistle-blowers, these three became fail-safe systems that did not fail. For believing–really believing–that the truth is one thing that must not be moved off the books, and for stepping in to make sure that it wasn’t, they have been chosen by TIME as its Persons of the Year for 2002,” the magazine declared.

“These were ordinary people who did not wait for higher authorities to do what needed to be done. Literature’s great statement on unwelcome truth telling is Ibsen’s play An Enemy of the People. Something said by one of his characters reminds us of what we admire about our Dynamic Trio. ‘A community is like a ship,’ he observes. ‘Everyone ought to be prepared to take the helm.’ When the time came, these women saw the ship in citizenship. And they stepped up to that wheel,” the magazine further stated.

Edward Snowden, the former NSA contractor who revealed documents showing the true nature of a massive and intrusive surveillance apparatus built in the aftermath of the September 11th attack, would seem like a worthy candidate for “Person of the Year.” Didn’t he “step up to the wheel”? Didn’t he “not what for higher authorities to do what needed to be done”? Didn’t he believe the “truth is one thing that must not be moved off the books” and step up to “make sure that it wasn’t”?

I contacted Rowley to ask her what her thoughts were on the fact that Snowden was designated by TIME as a runner-up “Person of the Year.” The magazine played it safe and bowed to the government by awarding someone who would be far, far less controversial: Pope Francis.

Rowley said TIME’s “sole criteria” is supposed to be “impact on news, whether good or bad.”

“If that had been their sole criteria, there is no way that Snowden [would] not have won because his revelations and disclosures go straight to the news itself,” Rowley argued. She also said it would be impossible for a person to have more impact on the news. Plus, his revelations go “directly to freedom of speech, freedom of association and, most importantly, freedom of the press.”

TIME published a feature story on Snowden. The magazine obtained comments from Snowden, and they also spoke with NSA whistleblower Thomas Drake and Justice Department whistleblower Jesselyn Radack, who traveled with Rowley and former CIA officer Ray McGovern to meet Snowden in Russia earlier this year.

The magazine labeled Snowden “the Dark Prophet.” It wrote that he “pulled off the year’s most spectacular heist” and that it was the “most spectacular heist” in the “history of spycraft.”

I asked Rowley about this framing. She had not read the story yet but was aware that Snowden had not been designated “Person of the Year.”

“He pulled off the most spectacular heist is what they said?!” she reacted. I told her that was how they framed it.

“Oh my gosh, that is unbelievably sad,” she said. “If they themselves care about honest, accurate investigative reporting,” TIME magazine obviously doesn’t understand the implications of calling what he did a “heist.”

“Framing it as if it is a heist is back to this whole idea that the secrecy agreement that he violated is more important or as important as the information he disclosed, which makes no sense at all,” Rowley suggested.

She used the example of Rosa Parks to explain that this is like saying that Rosa Parks’ violation of a “seat law” is more important than “the substance of the unlawful action of forcing her to sit in the back of the bus.”

This is the opening of TIME magazine’s story. It starts with Snowden being visited by Drake, McGovern, Radack and Rowley:

To avoid surveillance, the first four Americans to visit Edward Snowden in Moscow carried no cell phones or laptops. They flew coach on Delta from Washington with tickets paid for by Dutch computer hackers. After checking into a preselected hotel not far from Red Square, they waited for a van to pick them up for dinner.

None could retrace the ride that followed, driven by anonymous Russian security men, nor could any place the side door of the building where the trip ended. They passed through two cavernous ballrooms, the second with a painted ceiling like the Sistine Chapel, and emerged into a smaller space with salmon-colored walls and oil paintings in golden frames—like Alice in Wonderland, remembers one of the group. There at the bottom of the rabbit hole, in rimless glasses, a black suit and blue shirt with two open buttons at the collar, stood the 30-year-old computer whiz who had just committed the most spectacular heist in the history of spycraft.

The paragraph reads like an end scene from a Hollywood espionage thriller, and, when I told Rowley the story makes it seem like she, along with Drake, McGovern and Radack, were there to congratulate and celebrate the “heist,” she said her stomach had just turned.

“TIME, being part of the mainstream media has decided to choose its sides,” she added. “Truth doesn’t matter as much to them anymore as currying favor with authorities and officials.” She added that this shows a “complete change of culture and mentality” since she was one of the three whistleblowers who were “Persons of the Year” in 2002.

When I spoke with Radack, who was interviewed for the story, she told me she had yet to see a media organization characterize what Snowden had done as a “heist.”

“The implication is to criminalize Snowden,” Radack argued. It is to suggest that he, “against someone’s will, took something and stole it. That is the clear implication: that he is this grand master burglar, not a whistleblower.”

The New York Times and other media organizations have called Snowden a “fugitive” or a “leaker” because they are reluctant to cast him as a whistleblower. However, they have never made it seem like he engineered some great robbery. To present it that way is to not only encourage government officials, who might discuss what he did in this dramatic fashion, but to also engage in tabloid journalism, which is truly contemptible.

Radack further pointed out that it does not go into the war on whistleblowing that President Barack Obama’s administration has been accused of escalating, as it has prosecuted a record number of leakers under the Espionage Act.

Unfortunately, TIME doesn’t merely sensationalize Snowden’s act with a level of utter disregard for the state of freedom of the press in the United States. The magazine suggests that Snowden has not revealed anything illegal, and it quotes from a set of NSA talking points, which I reported and published on December 2.

The programs Snowden revealed in US ­surveillance agencies, at least since the 1970s, are subject to a strict, regularly audited system of checks and balances and a complex set of rules that restrict the circumstances under which the data gathered on Americans can be reviewed. As a general rule, a court order is still expected to review the content of American phone calls and e-mail ­messages. Unclassified talking points sent home with NSA employees for Thanksgiving put it this way: “The NSA performs its mission the right way—­lawful, compliant and in a way that protects civil liberties and privacy.” Indeed, none of the Snowden disclosures published to date have revealed any ongoing programs that clearly violate current law, at least in a way that any court has so far identified. Parts of all three branches of government had been briefed and had given their approval.

How atrocious is it that TIME Magazine would publish a story where they make it seem like this NSA talking point is legitimate and true? This is how I deconstructed the talking point in my original report:

A Foreign Intelligence Surveillance Court (FISC) judge ruled, when reviewing a program that was collecting records of Internet communications” that the agency had committed “longstanding and pervasive violations” of prior orders by the court. It found that government officials knew or had reason to know that “portions” of collection constituted “unauthorized electronic surveillance.” This unauthorized and illegal surveillance “included information concerning the identity of the parties and the existence of communications to or from persons in the United States.”

FISC Judge John Bates stated that the government had a “history of material misstatements”—otherwise known by Director for National Intelligence James Clapper as “least untruthful” answers and known among non-members of the national security state as lies. The government had a “poor track record” of exceeding the implementation constraints or going beyond purported privacy safeguards represented to the court.

Another ruling by the FISA Court in 2009 found, the NSA “frequently and systematically violated” the agency’s “minimization procedures,” intended to protect Americans’ privacy, “that it can fairly be said that this critical element of the overall [business records] regime has never functioned effectively.”

As Julian Sanchez of the CATO Institute recently recounted, “For the first three years of the call records program’s current incarnation, the FISC was misinformed about how it really worked. As a result, software tools routinely accessed the data without the required approvals: Of the 17,835 phone numbers searched by one automated alert list from 2006 to 2009, only 1,935 had been vetted for “reasonable suspicion.” Query results were also improperly shared with the CIA and FBI.”

In fact, journalist Marcy Wheeler, who has written in extensive detail on all the released NSA documents so far, has demonstrated through multiple posts that the NSA has continued an illegal wiretapping program that has grown in size since it was first exposed under President George W. Bush.

It is true that the FISA Court opinions, which I referenced, were not revealed by Snowden, however, his disclosures forced the government into a situation where they could no longer conceal the opinions containing secret legal interpretations of government authorities to conduct surveillance from Americans. (Note: Obama didn’t merely choose to declassify thousands of documents, as TIME parrots. The Electronic Frontier Foundation filed a Freedom of Information Act lawsuit, and, facing a potential court order, chose to voluntarily begin to release documents that EFF (and the ACLU) wanted to be released.)

The program under the PATRIOT Act, which collects all phone records of Americans, amounts to a general warrant, which was once applied by the British against colonists and ultimately played a role in the American Revolution and the establishment of the Fourth Amendment.

The idea that nothing illegal has been revealed, “at least in a way that any court has so far identified,” is rather flippant.

Left entirely unmentioned is the fact that the American Civil Liberties Union had a lawsuit against the FISA Amendments Act, which legalized dragnet and warrantless surveillance, dismissed by the Supreme Court this year. The plaintiffs in the lawsuit were told they couldn’t challenge the law because they could not prove they had been under secret surveillance. Effectively, this insulated the NSA’s dragnet and warrantless surveillance from judicial review.

TIME mentions that Snowden is tracking “new federal lawsuits” against surveillance, which he has made possible. They could have highlighted how his disclosures have made it possible to overcome government arguments of “state secrets” and “national security” or lack of proof. Now, one of these lawsuits are likely to result in some kind of court ruling by a federal court that will be public.

What about how the Justice Department is now going to notify all criminal defendants in cases where warrantless surveillance was used against them of this fact? This would seem unethical if not unlawful. It’s questionable enough to delay the sentencing of a Somali-American man, Mohamed Osman Mohamud, who was arrested in an FBI sting operation and convicted of trying to bomb a Christmas tree-lighting ceremony.

This is not the first time this year that TIME has equated whistleblowing with spying. In June 2013, TIME ran a cover story that presented Snowden, Chelsea Manning and Aaron Swartz as “The Informers.” It typecasted Snowden as “the 21st century mole,” who “demands no payments for his secrets.”

Presenting whistleblowers like Snowden in this manner not only encourages the government to set up McCarthyist programs like the “Insider Threat” program to root out and unmask potential leakers, but it makes it easier for the government to openly justify surveillance of investigative reporters and their communications with confidential sources. That can seriously chill investigative reporting while at the same time encouraging access journalism like, for example, the publishing of stories that simply repeat without any skepticism what anonymous officials have to say on matters of national security.

And, finally, it is one thing to be more neutral and promote what establishment media consider “professional journalism” by calling Snowden a “leaker.” It is quite another to cast him as “The Dark Prophet,” who engaged in the “most spectacular heist” in the “history of spycraft.”

That is far from neutral or objective, and, if Snowden is ever brought back to the United States for trial, one could easily picture a government attorney having this feature story entered into evidence so prosecutors could say, “Even a magazine that recognized him as a runner-up ‘Person of the Year’ understood that what he had committed was theft.”

No matter what great and positive impact he had, he still committed a crime and deserved to be brought to justice.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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