Conservatives last week devoured a story by John Solomon and Sara Carter at Circa with this title, “Obama intel agency secretly conducted illegal searches on Americans for years.” The Obama administration, noted the story, had “routinely violated American privacy protections while scouring through overseas intercepts and failed to disclose the extent of the problems until the final days before Donald Trump was elected president last fall.”
That sort of misfeasance merited followup by the mainstream media, according to various voices on the right. NewsBusters scolded, “Nets Blackout Massive Constitutional Violations by Obama’s NSA.” PJ Media: “Shock: Complete MSM News Blackout on NSA Illegal Spying Bombshell.” Mollie Hemingway of the Federalist did a social-media roundup of the un-coverage:
— Mollie (@MZHemingway) May 25, 2017
Fox News correspondent James Rosen also pushed the mainstream-media blackout notion on the evening news program “Special Report with Bret Baier.” On Thursday, he credited Circa for being the first to obtain the documents related to the NSA story, and then said this about the amount of pickup the revelations have triggered: “The sheer scale of the Fourth Amendment violations disclosed is staggering as was the sternness of the rebuke to the Obama administration delivered by the FISA court which ordinarily approves 99.9 percent of the government’s request for surveillance,” said Rosen. “As of a few minutes ago, however, Bret, the story had not been covered on The Washington Post, New York Times, nor any of the three nightly news broadcasts on the three broadcast networks.”
Baier responded, “Amazing.”
“Amazing” might describe the corrections that Rosen has since issued on Fox News airwaves.
On Friday, he attempted to correct the record in this manner:
Finally, I was in error when I stated on this program yesterday that the New York Times and the Washington Post had not reported on the FISA court’s admonition of the NSA for its own Fourth Amendment violations. Both newspapers covered the change in NSA practices instituted by the Trump administration. And the Times published nine words from the documents we’ve explored in much greater depth here in the ninth paragraph of a story that ran on page A-21 two weeks ago. I regret the error.
So that’s an insult wrapped in a correction. Clearly, someone out there — perhaps an enraged staffer or two at the New York Times — alerted Rosen to the snottiness of his “correction.” Because on Monday night’s program, Rosen corrected the correction:
Last week, we reported on recently declassified documents in which the FISA court sternly admonished the FBI for violations of Americans’ Fourth Amendment rights during the Obama era. I made two errors. I said the Web site Circa broke the story and I said the New York Times and Washington Post hadn’t covered it. And my last attempt at a correction didn’t do it justice.
So here is take two. In fact, it was the New York Times Charlie Savage who first broke the NSA violations and the FISA court’s intervention in an exclusive that was published on Page A-1 on April 28. The Washington Post followed … with an article that cited the Times reporting.
Then on May 11, after the FISA court documents were declassified on the Website of the Office of Director of National Intelligence, Charlie Savage again reported on the matter for the Times, including quotations from the FISA court documents.
I regret those errors.
How did Rosen come up with this notion about the New York Times in the first place? Too much Twitter? He issued this statement to this blog:
I decided to issue a second, fuller correction because I recognized that my first attempt had not conveyed to our viewers that Charlie Savage of the New York Times had in fact broken the story well before the news outlet Circa, which I had inaccurately credited as having done so. The chief reason why the first correction proved inadequate was that I misguidedly tried to cram the relevant information into fifteen seconds’ time; ultimately, that concision sacrificed comprehensiveness, and so I decided, after some thoughtful exchanges with Charlie – a colleague I respect deeply, and a former guest of mine on “The Foxhole” – to take a second stab at it. This was the right thing to do in terms of both comprehensiveness and collegiality. I also posted both corrections on my Twitter feed, with all appropriate tags. Issuing corrections is never fun – as even the Erik Wemple Blog can attest – and I am grateful to be so inexperienced at it.
A nod to Rosen for extensive self-correction as well as for answering the question of the Erik Wemple Blog.
Charlie Savage, the New York Times reporter who broke the story, has among the most difficult jobs in Beltway journalism. It falls to him to detail in comprehensible terms how the National Security Agency implements Section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorizes intelligence officials to “target the communications of non-U.S. persons located outside the United States for foreign intelligence purposes.” A key limitation on Section 702 surveillance is that it cannot be used to “intentionally target” U.S. citizens and even people “known to be” in the United States.
That very tension — the need to surveil foreign threats without scooping up U.S. citizens — is at the heart of Savage’s April 28 article. Under the headline “N.S.A. Halts Collection of Americans’ Emails About Foreign Targets,” Savage brought to light some surveillance developments with a long history. As the article explained, the tentacles of this surveillance extend all the way back to 2001, when the administration of George W. Bush birthed the Stellarwind program, which, as Savage noted, “bypassed statutes and court oversight.”
By 2007, when the Bush administration started implementing the program with the blessing of Congress and the oversight of a FISA court, it insisted on a broad application of its surveillance powers — a sentiment that’s hardly a surprise given the inclinations of then-Vice President Dick Cheney. The Bush people wanted to sweep up not only direct communications by foreign targets, but also communications among others that referenced those targets — so-called “about” communications. “Under the proposed method of conducting electronic surveillance, then, N.S.A. will be in a position not only to learn information about the activities of its targets, but also to discover information about new potential targets that it may never have otherwise acquired,” according to a 2007 statement from an NSA official cited by the New York Times.
All of this activity relates to NSA’s “upstream” surveillance. What’s that? It’s data supplied by “backbone” communications companies such as AT&T and Verizon. Cross-border communications featuring so-called “selectors” — like an email address — used by targets are forwarded to NSA. Here’s a slightly more involved explanation that comes from an NSA inspector general report:
The practice of vacuuming up “about” communications has spawned complications and excesses. In 2011, as Savage notes, the NSA disclosed to the FISA court that a byproduct of upstream “about”-style collection meant the agency was also sucking in thousands of purely domestic emails each year without a warrant. The court decided that practice violated the Fourth Amendment, then agreed to a fix that permitted it to continue. The solution included a rule that analysts would not be permitted to search for information about Americans within the raw repository of emails gathered from Internet switches. A report by the NSA inspector general found that the agency’s “controls” on this front “have not been completely developed.”
Rosemary M. Collyer, a judge on the Foreign Intelligence Surveillance Court, hammered the NSA for “lack of candor” and cited the search problems as a “a very serious Fourth Amendment issue.” Even so, she reauthorized the program after NSA ended “about” collections.
Though Savage had explained all the foregoing in stories dated April 28 and May 11, a big chunk of the American newsphere treated Circa’s story of May 24 as something explosive and new. Part of the reason stems from the signposts installed by the Circa reporters. Sample this sentence: “More than 5 percent, or one out of every 20 searches seeking upstream Internet data on Americans inside the NSA’s so-called Section 702 database violated the safeguards Obama and his intelligence chiefs vowed to follow in 2011, according to one classified internal report reviewed by Circa.” Bolding added to highlight language suggesting top-secret exclusivity.
Asked about that matter, Solomon told the Erik Wemple Blog that if Circa had gotten the document exclusively, the story would have said “obtained by Circa” instead of “reviewed by Circa.”
The Circa reporters could have saved the Internet a lot of panting if they had only linked to Savage’s story, not to mention The Post’s piece. Asked about that omission, Solomon responded that the New York Times story wasn’t enterprise reporting. It was “an announcement story,” Solomon told this blog. Savage’s April 28 story, however, preceded the NSA announcement. “Like many important details in the article he co-wrote, Solomon got that wrong,” says Savage in a statement to this blog. “The New York Times’ April 28 story was not a write-up of a N.S.A. announcement. Rather, based on sources, I learned what happened and we published an exclusive enterprise article around 1 p.m. on our website. The N.S.A. issued its statement about three hours later, as reporters at other news outlets were writing their own stories about the news.”
The Circa piece on the NSA under President Barack Obama was part of a trio of stories that also included a look at the CIA’s approach to unmasking and the FBI’s sharing of data with third parties. Springboarding off the New York Times’s “spot news” coverage, Solomon went deeper into the issues and focused on the violations of the surveillance rules, he says. “The violations didn’t get media attention,” he says. “That is irrefutable.”
Scolding the Erik Wemple Blog, Solomon said, “Come on, you’re in search of a story and making up a controversy. The New York Times and the Washington Post didn’t do anything exclusive.”
Right, except cover the story. First. Despite a wide-ranging “blackout.”