AP Calls a Bill that Would Criminalize Sources Used for the Same Story a “Compromise”

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Senate Intelligence Chair Richard Burr, who convinced journalists that criminalizing their sources amounted to a “compromise.”

Overnight last Friday, the Senate tried, and failed, to come up with a way to stave off the imminent expiration of Section 215 of the PATRIOT Act, which authorizes both the phone dragnet and other, probably more useful, bulky Internet collection. Hawkish Republicans rejected the solution that had the most support in both the House and Senate — the House’s moderate USA Freedom Act — even in spite of the many new things the bill would give the Intelligence Community. Effectively, 42 Senators claiming to want to preserve the phone dragnet will instead likely cause it to lapse on June 1.

They justified their decision by pointing to a bill that Senate Intelligence Committee Chair Richard Burr had not even released before the first deadline to extend the dragnet (a one-week advance the FISA Court requires on phone dragnet reapplications) had already passed. And their decision — to force the lapse of a dragnet they claimed to want to preserve — was spun favorably by reporters who (presumably relying on 11 flimsy bullet points released five hours before the bill itself as well as Burr’s affirmatively misleading claims about it) dubbed it a “compromise” that would transition over two years rather than six months.

Both claims are false. Burr’s bill itself would be a breathtaking expansion of surveillance authority, probably even bigger than the FISA Amendments Act passed in 2008. And even his bullet points admit that the outsourced collection “takes effect on June 30, 2017;” this is a 2-year delay, not a transition. During that delay, the dragnet would expand and parts of it would lose court oversight.

The credulous journalism regarding Burr’s bill is all the more remarkable given that it criminalizes whistleblowing and other leaks that journalists rely on.

The bill basically would create its own mini Espionage Act, just for Section 215, creating a 10-year prison term for anyone who knowingly communicates information about Section 215 collection to an “unauthorized person.”

To illustrate how absurd the treatment of Burr’s bill — with its very own Espionage Act — as a “compromise” is, consider this story from AP’s Ken Dilanian. As many other news outlets did, it presented Burr’s bill as a “compromise” that would “transition” the dragnet.

Sen. Richard Burr, chairman of the Senate Intelligence Committee, has floated a plan that would essentially dare the House to let the law expire.

As a compromise, Burr wants to extend current law between 5 days and a month to give the House time to pass the Senate bill. Then he would have the NSA transition to the system envisioned by the USA Freedom Act. But he would allow the transition to take more time — two years, not six months.

But in that very same story, Dilanian repeated coverage he did, while at Los Angeles Times, back in February 2014.

At issue is a section of the Patriot Act, Section 215, used by the government to justify secretly collecting the “to and from” information about nearly every American landline telephone call.  For technical and bureaucratic reasons, the program was not collecting a large chunk of mobile calling records, which made it less effective as fewer people continued to use landlines.

The earlier story relied on U.S. intelligence “officials, who spoke on condition of anonymity because much of the program remains classified.” That is, the story relied on precisely the kind of classified leaks that would face a 10-year sentence under Burr’s bill.

Mind you, there’s reason to believe the earlier reporting was a sanctioned leak, not least because journalists at four major outlets all reported the story at the same time. The stories provided just enough detail to cause Circuit courts to question the standing of Verizon Wireless customers challenging the dragnet, but not enough technical detail to make it useful for debates like the one before Congress (even as Burr’s bill would expand the technical scope of the dragnet).

If the earlier reports were based on a sanctioned leak, there’s little chance US intelligence officials sharing information they clearly identified as classified would be sent to prison for 10 years. But sources who might provide the kind of information that would make this debate useful would face prison terms. For journalists to deem such a bill a “compromise” would be to suggest they’re okay working exclusively with one-sided official leaks.

At this point, there’s no chance Burr’s bill will get serious consideration — though hawks are already repurposing his misleading “transition” idea to try to regroup after Friday’s votes. But it’s a testament to how significantly hawks have skewed this debate that journalists are describing the criminalization of the reporting process as a “compromise” solution.

About Marcy Wheeler

Investigative journalist Marcy Wheeler writes the "Right to Know" column for ExposeFacts. She is best known for providing in-depth analysis of legal documents related to "war on terrorism" programs and civil liberties. Wheeler blogs at emptywheel.net and publishes at outlets including the Guardian, Salon and the Progressive. She is the author of Anatomy of Deceit: How the Bush Administration Used the Media to Sell the Iraq War and Out a Spy. Wheeler won the 2009 Hillman Award for blog journalism.