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The withdrawal of an NSA story – and an ethical quagmire for the Observer

observer - Version 2

 By Simon Davies

There are many inspiring stories of heroic actions by journalists and editors – tenacious tales from the front-line in pursuit of truth. Unfortunately for one British Sunday newspaper – the Observer – inclusion in that noble circle may have to wait until the paper conducts a deep dive into its principles.

Circumstances surrounding the hasty removal of a story have raised some uncomfortable questions about the Observer‘s editorial processes and its ethical compass.

Over the past few days circumstances surrounding the paper’s hasty removal of a front page story on NSA spying within Europe have raised some uncomfortable questions about the Observer’s editorial processes and its ethical compass (the Observer is the sister publication of the Guardian newspaper).

It seems that at the heart of the paper’s decision to expunge this story was a torrent of condemnation from the hard-core US Liberal media over the credibility of a former NSA contractor, Wayne Madsen, who had featured in the article.

By way of background, Madsen has never been on friendly terms with the Liberal media, and the two have been like acid and water for the past ten years.

A mini Twitter-storm in the two hours following publication persuaded the Observer to withdraw the story. A barrage of subsequent hostile reviews persuaded the paper to keep it withdrawn.

I’m hoping that the Observer can shed more light on this episode – though most media organisations accused of ducking for cover this way have responded like a pugnacious street-boy, leaning against the garage wall and growling “I weren’t afraid of nuthin’.”

In this case though I suspect the Observer was afraid of the barrage. From all the evidence I’ve been able to gather they panicked, canned the story, made up a plausible excuse and then when they discovered that the article was factually correct, tried to bury it. Now I’m guessing they just want the whole affair to go away – but it’s too important to be dismissed that lightly.

The validity of the article’s assertions was not in doubt. Indeed the Guardian itself later confirmed that the story was factually sound. Instead, editorial staff had anguished over the sustainability of featuring a central character who held unconventional, contentious and sometimes bizarre views – even though these views were unrelated to the ambit of the expunged story. It’s a little like withdrawing an exposé on maladministration of public funds because the informant had expressed a belief in the conspiracy of One World Government.

This is not an unusual dilemma for media. The perceived credibility of informants is important to public trust in an article – which goes some way to explaining the popularity of cloaking devices such as “informed source”. However it’s critically important for “Great” newspapers (among which the Observer is often counted) to avoid making such judgments in the manner by which contestants are voted off the Big Brother household. Sadly, the Observer appears to have capitulated to insider lobbying at the expense of its ethical obligation to publish.

Staff anguished over the sustainability of featuring a central character who held unconventional, contentious and sometimes bizarre views

As I’ll explain in more detail later, there are some troubling differences between this and previous instances where the sustainability of a source is under examination. I’m curious to explore whether the Observer made a pragmatically sound decision for the wrong reasons.

The phenomenon of heroism

Being heroic means taking a risk both to defend integrity in reporting and the pursuit of truth – in other words, placing the public’s right to know above all else. In some respects the recent Observer episode is a sort of anti-hero scenario – timid, self-preserving, inwardly focused and steered by a pragmatic editorial policy.

By retracting and then “disappearing” a prominent story that was factually correct, the paper opens some difficult questions about media self censorship. To take such an action through genuine concern for factual integrity is appropriate. But to do so because of intimidation by – at least partially – irrelevant and groundless media criticism raises questions about the paper’s confidence and maturity. Sadly, the two motives are evident in equal measure in this episode.

The Observer’s decision to kill the Madsen story is as important as the erased material itself. Consider the following text from the abandoned Observer piece:

wayne-madsen“[Madsen] said he was alarmed at the “sanctimonious outcry” of [EU] political leaders who were “feigning shock” about the spying operations while staying silent about their own arrangements with the US and was particularly concerned that senior German politicians had accused the UK of spying when their country had a similar third party deal with the NSA. “I can’t understand how Angela Merkel can keep a straight face, demanding assurances from Obama and the UK while Germany has entered into those exact relationships,” He said the public needed to be made aware of the full scale of the communication sharing arrangements between European countries and the US intelligence community…”

The clear allegation is that Germany’s public position is duplicitous. Now compare those expunged assertions with those of Spiegel, published one week later and that refer to new material from Edward Snowden:

“Edward Snowden accuses the National Security Agency of partnering with Germany and other governments in its spying activities. New information also indicates close working ties between the German foreign intelligence agency and the American authority. Snowden said the NSA people are “in bed together with the Germans.” SPIEGEL reporting also indicates that cooperation between the NSA and Germany’s foreign intelligence service, the BND, is more intensive than previously known.”

The similarities are striking. The discredited Madsen story was also mirrored by the Guardian with the headline “Edward Snowden tells Der Spiegel NSA is ‘in bed with the Germans” – publication of which was not on the basis of disclosed documents, but on the basis of an interview with Snowden. So, bang goes any claim to evidence-based reasoning in such matters.

These are issues that are squarely in the public interest, and denying the public the right to know should be no light matter for any serious paper.

Don’t get me wrong – one snow does not a winter make. The Observer and I go back a long way, and I still believe it is a credible newspaper. Over the years I’ve been quoted in its pages innumerable times, I’ve written articles for it and the paper has covered several of my campaigns.

These days mainstream media organisations have reduced the margin of risk in reporting to a sliver.

I’ve written for newspapers – on the newsroom floor and off – since I was a teenager, so I’m not unfamiliar with the often conflicted and arbitrary decision processes in a highly charged environment. It’s not like I’m sniping from the sidelines here.

This is likely to be a quite lengthy essay, and I have invited the Observer to respond with a detailed article for these pages – a think piece perhaps. That’s the sort of substantive action I would hope from a “Great” newspaper – though in these risk-averse times I’m not holding my breath. Still, this blog won’t be disappearing any time soon and will just attract more and more readers, so I can wait.

Heroism in intelligence media reporting

The Washington Post’s role in the Watergate exposé of the early 1970s is one example of a heroic media chapter. The paper withstood extreme pressure to abandon its investigation but, instead, stood by the instincts of experienced journalists.

The UK Daily Telegraph’s 2001 “Free Country Campaign” is another. example of a heroic moment. The then editor, Charles Moore, took the decision to reverse the paper’s traditional “hang ’em and flog ’em” policy to become a paper that promoted many aspects of personal freedom – including openness and free expression. In doing so the paper risked a massive backlash from its conservative subscriber base.

It is difficult for any news organisation in these turbulent times in the media industry to defy its own neurosis –  because that means taking risks.

However in recent times there have been few such examples in the West – in part because other institutions such as courts, tribunals and FOI laws also perform a truth-enabling function. These days mainstream media organisations have reduced the margin of risk in reporting to a sliver.

Of course the true heroes of the current spying ferment are not so much the reporting media organisations, but the people who have put their liberty on the line to disclose the truth. As most people will know, these whistleblowers have breached life-long secrecy agreements to risk prosecution for treason and other serious offences.

Most people would instantly place Edward Snowden and Bradley Manning in this category, but there are others who have prepared the ground for the turbulence of recent weeks.

In the 1970s, for example, British journalist Duncan Campbell exposed the UK’s then-secret SIGINT organisation GCHQ. As a result he was arrested and prosecuted under the Official Secrets Act.

In more recent times William Binney, Thomas Drake, Adrienne Kinne, Mike Frost, Russell Tice, Mark Klein and Wayne Madsen have all defied their secrecy agreements to speak out publicly about the extent of NSA surveillance. Yes, Wayne Madsen.

It’s understandable to sing praise to well-known media outlets for publishing such disclosures. Those organisations sometimes risk humiliation if the stories don’t stand up – and prosecution if they do. However most mainstream media groups have historically been incapable or unwilling to conduct true investigative work on national security issues – and many have instinctively resisted publishing the output of other media organisations.

Most mainstream media groups have historically been incapable or unwilling to conduct true investigative work on national security issues

In an earlier entry on this site I recounted my own experience in this regard – trawling the media in 1997 in an effort to sell a story on the NSA’s ECHELON system. In spite of the superb prior work of Duncan Campbell et al, I was tarnished as a mad conspiracy theorist in need of medication.

Two years later – following a genuinely heroic decision by the UK’s Daily Telegraph to publish – the domino effect from my article helped persuade the European Parliament to establish its inquiry – after which the existence of the spy system became self evident.

Thankfully the past few weeks have witnessed a transformation in global reporting on national security operations. This is down to three converging factors: a foundation of evidence built up over 25 years, a series of document archives that created the context and the language for reporting – and a dramatis persona in the form of Edward Snowden.

However this heroism that media occasionally displays can be transient. The Press picks its issues on a case by case basis. The Washington Post – hailed for its heroism during Watergate – appears now to be back-tracking on Snowden. The Guardian – which is regarded as heroic for publishing Snowden’s material in the present era – had refused to publish equivalent ECHELON material sixteen years earlier. To some extent it’s a case of swings and roundabouts.

It’s difficult to overstate the Snowden element in this saga. Almost all readers will recognise the palpable shift from intellectual engagement to emotional involvement as he fled to Russia. As the temperature of reporting has been raised, so too have public expectations of reporting. Media requires a named individual, hence the need to use Madsen’s true identity rather than a cloaking device.

The Washington Post – hailed for its heroism during Watergate – appears now to be turning on Snowden.

But let me be clear about one reality of these events. In the big scheme of things, what we’ve been observing with the disclosures is largely old wine in new bottles. If you dig into that quarter century of literature you’ll find that a huge amount of the Snowden material already existed. A dozen authors from Nicky Hager to James Bamford have produced detailed books that set out the global signals intelligence infrastructure.

Yes, there are a few new details, but what makes the current scenario so different is that we have a new body of original documentation – and we have a human face cast in dramatic circumstances. In polite terms you could call this a narrative. Put more bluntly, it’s theatre.

Analysis of a media mystery

Enter the Observer. To provocatively summarise the episode, nine days ago the Observer published a page one splash that outlined some important national security interception details. It then caved in to a Twitter flash-mob, obliterated the article and then published a glib justification that maligned the story’s whistleblower.

Here’s the way the Observer justified the episode in its “For the Record” section the following week:

Almost all readers will recognise the palpable shift from intellectual engagement to emotional involvement as he fled to Russia.

“On Saturday night, the Observer published a story in print and online on the Guardian website, headlined “Revealed: secret European deals to hand over private data to America”. It dealt with the operational relationship between EU member states and the National Security Agency (NSA), suggesting that the US had signed a series of agreements stretching back decades, which allowed it to harvest surveillance data in a number of European countries, in addition to the UK. The documentary evidence for the story, which was based on a number of sources, was sound, but it was wrong to connect Wayne Madsen with this story in any way. For this reason, the original story was removed from the website, and the Observer splash was replaced. A rewritten version of the story was later published on the website.”

This is a rather patchy version of events so it’s worthwhile – for the more comprehensive record – to tell the full story. After all, front page splashes don’t get “disappeared” every day.

It all began when I prepared to publish a blog on the Privacy Surgeon that set out some important facts relating to communications surveillance in Europe. It was an important blog because it compiled the available evidence to establish that European leaders were telling their citizens only part of the story regarding spying within the EU. Indeed there had been collusion between member states of the EU and the NSA to collect signals intelligence within European borders. This blog was published a matter of hours before the latest revelations via Edward Snowden that supported the article’s assertion.

Indeed there had been collusion between member states of the EU and the NSA to collect signals intelligence within European borders.

Again for the record, these are the five main points made in the piece:

1     At least seven European member states (the UK, Denmark, the Netherlands, France, Germany, Spain, and Italy) have entered into secret contractual arrangements to share intercepted personal communications data with the US National Security Agency

2     Under the international intelligence agreements, nations are categorised by the US according to their trust level (ranging from second party to fourth party).

3     Countries such as Germany and France have Third Party, or “less trusted” status in these agreements, in which the “NSA gets the lion’s share of the Sigint “take”.” In return, the third parties to the NSA agreements received “highly sanitized intelligence product.”

4     German politicians had accused the UK of interception operations against EU countries, while failing to disclose Germany’s own third party arrangement with the NSA.

5     All seven European countries and the US have access to the Tat 14 fibre-optic underwater cable network running between Denmark and Germany, Netherlands, France, the UK and the US, allowing them to intercept vast amounts of data which potentially includes phone calls, emails and user’s access to websites.

The Observer looked at the draft and also thought it was an important contribution, which is why it decided to run a front page splash on it. And indeed the paper did run the story as planned as its first edition front page lead. The online version attracted several hundred comments, most expressing concern about the collusion that existed between member states of the EU and the NSA to collect signals intelligence.

Madsen over the past decade has been at least a year ahead of press reporting on key NSA disclosures.

The claims were referenced and documented, and relied on sources that are credible (for example, publication of material on the NSA site and a 2001 inquiry report by the European Parliament). This formed the basis of the assertions. Indeed many NSA-watchers will right now be shrugging their shoulders and wondering what the big deal is. Just about everything in the piece was known – even if only to the dedicated few.

I was aware that Wayne Madsen held controversial and inflammatory views. I was aware for example that he had expressed concerns that United flight 93 on 9/11 was brought down not by passengers, but by US military which was seeking to prevent a much greater catastrophe. Given utterances at the time by officials about these options, I was prepared to accept that such beliefs were in the spectrum of intellectual sustainability. That theory had been debated at the time in much of America’s mainstream media.

For example in 2009 Madsen revealed the deal between the NSA and Verizon and AT&T to scoop communications metadata. This was the opening revelation by Snowden more than four years later.

Madsen held other controversial views. Critics subsequently stressed that he reportedly said there was some evidence that President Obama is gay – a view that did not show up in any web searches at the time of publication (but which does now, following the resulting publicity).

The story – both in Privacy Surgeon and in the Observer – reflected this situation with a non-specific caveat that explained the background. The Privacy Surgeon’s article went as far as advising that regardless of Madsen’s other views, his track record on SIGINT issues was solid. Indeed Madsen over the past decade has been at least a year ahead of press reporting on key NSA disclosures. For example in 2009 he revealed the deal between the NSA and Verizon and AT&T to scoop communications metadata. This was the opening revelation by Snowden more than four years later.

The take-down

After publication of the piece, from around 10PM, there was a significant response on Twitter that Madsen’s reported “non SIGINT” views were unacceptable and extreme. Columns and blogs critical of the piece quickly appeared. Madsen’s views were outrightly condemned and the Observer was lambasted.

By midnight the article had been removed from all later editions of the paper and was pulled from the website “for investigation”.

News of the take-down appeared in the San Francisco Chronicle, Business Insider, the Inquirer, Salon, Gawker, Boing Boing, the Daily Telegraph (UK), the Examiner, InfoSecurity magazine, the Daily Beast, Le Figaro, La Stampa, De Welt and four dozen other publications.

After this point events started to become distinctly odd. The criticism was stinging and widespread, but much of it was fundamentally wrong. The three columns that viraled were Business Insider, Poynter.org and The Daily Beast, all of which were viciously personal and all of which contained a substantial number of factual errors that the Observer must have been aware of – given that it was in contact throughout the night with its journalist.

The criticism was stinging and widespread, but much of it was fundamentally wrong.

The most influential of these publications was Michael Moynihan’s column in the Daily Beast, a staunchly Liberal news site that operates in partnership with Newsweek. Moynihan’s writing fell squarely into the category of Yellow Journalism, and was crammed with ad hominem attacks, specious quotes, guesswork and factual errors.

In short, the primary sources of the Observer’s anxiety had falsified the context and background of the story by – for example – claiming that the journalist had never even spoken to Madsen, that he had never conducted an online search on Madsen and that the piece relied solely on Madsen rather than on documentation.

Some hours later Forbes ran a more measured analysis of the take-down which asked why an apparently correct story had been withdrawn – Madsen notwithstanding.

The Forbes piece also noted supporting references within the newly disclosed documents in Der Spiegel – published two hours after the Observer publication – which verified that Germany had been extensively involved in spying and was a third level NSA partner. In short, the Privacy Surgeon-Observer articles were factually correct.

Some hours later Forbes ran a more measured analysis of the take-down which asked why an apparently correct story had been withdrawn – Madsen notwithstanding.

It would be an easy matter to argue that the paper was acting in good faith in pursuit of credible news reporting, but I’m afraid the problem is not that simple. The new material published by Snowden on that Saturday night fully vindicated the Madsen assertions, and yet the article remained deleted. It was not until Sunday evening that it made a truncated appearance, tacked onto another Guardian piece – sans Madsen.

The aftermath

Did the Observer actually conduct an analysis of the hostile coverage or did it just feel too uncomfortable and look for an easy way out? Did the paper engage a reasoned process that took into account the need to recognise Madsen’s true contribution and reputation in the SIGINT field – or was it consciously prepared to simply abandon him and watch as the man’s reputation was further trashed?

The soup gets thicker. Did the Observer realise that Moynihan and Madsen have a combative history as media commentators and that Moynihan himself had publicly boasted of “leading the charge” on Twitter to discredit Madsen and the Observer? Did the paper take the time to look at the genesis of the Twitter response to trace the key nodes as being Moynihan’s social networking followers?

Finally, how did the paper internally reconcile its failure to publish in the public interest?

I await advice from the newspaper on these matters, though my instinct is that the Observer stumbled naively into the US liberal media stew without even realising it. All the paper heard was condemnation from Madsen’s media opposition. Looking more carefully at the so-called Twitter Storm I’m seeing little more than a liberal media stitch-up.

Did the Observer realise that Moynihan and Madsen have a combative history as media commentators and that Moynihan himself had publicly boasted of “leading the charge” on Twitter to discredit Madsen and the Observer?

This situation leaves the Observer with a challenging ethical dilemma.

So we can focus on some key elements of this dilemma I’ll return to the Observer’s justification, which reads, in part: “The documentary evidence for the story, which was based on a number of sources, was sound, but it was wrong to connect Wayne Madsen with this story in any way.”

This assertion deserves some attention. Why would it have been “wrong” to involve Madsen in a piece that he himself had initiated? I can say with absolute clarity that I could strip Madsen from this piece – in his role as commentator – and every assertion would stand on a foundation of evidence in the public domain (regardless of how obscure that evidence may be). Indeed, that’s exactly what the Guardian ended up doing.

The difference is that I believe it would be ethically wrong to do so. That’s why the original Privacy Surgeon piece remains unchanged.

Having said that, why would I change it in the first place? The article was correct. If I decided what facts to publish on the basis of the complexion of the source I would very soon find myself in an ethical quagmire – and without much content either.

The Observer’s statement doesn’t justify – or even explain – why the paper reacted so dramatically to the external criticism. After all, the story had included a caveat warning that Madsen was controversial. The text of the story had been analysed and re-analysed by the Observer, Madsen and I for two days. It had passed the smell-test to which all front page splashes are subjected.

There are tangible consequences that flow from sweeping a matter like this under the carpet. In doing so a newspaper opens the floodgates to further conspiracy theory and attack. The decision, for example, permitted Moynihan to mercilessly attack both Madsen and the Observer yesterday on CNN’s “Reliable Sources” program, where he also emphasised his glee at leading the social media charge.

What was Madsen in this story? He was the narrator. By his own admission the material was available, but governments had sought to make it obscure.

We must not lose sight of why this article was published in the first place. It goes to the heart of integrity on openness and honesty in politics. To discard the message in pursuit of the messenger would reduce journalism to the most crude level of personality publishing.

It is not just Wayne Madsen who deserves a better explanation – and it’s not just Privacy Surgeon as the original publisher. The Observer owes it to its readers and to its history to explore these matters.

Go on, engage.