Cross: Marcy Wheeler, The NSA’s Worst Nightmare
Jan. 20, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Marcy Wheeler, whose blog, Empty Wheel, has done more to reveal the NSA’s secret surveillance of Americans than anyone other than Edward Snowden.
Q. Having recently questioned whether a physics education lends itself to thinking like a lawyer, you went in the opposite direction, getting your Ph.D. (that’s right, it’s Dr. Wheeler to you) in comparative literature from Michigan. To make it even worse, your emphasis was on 19th Century French and 19th- and 20th-Century Czech and Argentine “Feuilletons.” Did you ever think that you would end up writing about law, civil liberties and NSA surveillance? Did your education contribute to your understanding? Perhaps there are similarities between “Feuilletons,” what Newsweek described as a “subversive writing form” used under “authoritative regimes,” and the thousands of secret government documents you’ve read since?
A. I went to grad school because I had a general question I wanted to answer that ended up becoming the feuilleton research, not necessarily because I wanted to be a literature professor.
But my research absolutely does relate to blogging. My topic was about how a form that arose amid momentous media and nation-state change (the rise of industrialized newspapers and the nation-states that went with them) served as a place for certain kinds of speech, particularly in times of heightened repression. Stylistically, the feuilleton has usually been the conversational counterpart both to “high” literature and to more formalized political speech. And not incidentally, I wrote some about surveillance, interrogation, and torture because I was writing about dissidents in authoritarian countries. It turns out a PhD in CompLit can be perfect training for blogging. Heh.
Q. After your brief stint teaching Great Books and Communications in college, you decided that the ivory tower wasn’t right for you. Why not? That was from 2000 to 2002, well before the current wave of political correctness and “special” snowflake students. One would suspect there aren’t a great many careers that call for your rather specialized educational background, so how much must you have hated academia to blow it off after having gotten your Ph.D.?
A. Don’t underestimate my solid postmodern critical theory credentials! I even took a seminar with Slavoj Zizek, who invited himself to be on my dissertation committee (I declined the invitation).
One of the most fulfilling weeks I had before grad school I went from working on a writing project with a VP from Moodys to working on a writing project with an oil refinery operator in Superior, WI who had, by his own admission, barely made it through high school. In spite of the big disparity in background and training, they were struggling with similar issues but also, ultimately, managed to overcome them. Stuff like that made me a strong believer that the skills normally associated with a humanities education are necessary and undervalued in the “real world.” Increasingly, those humanities skills have been relegated to the academy, pre-law, or fiction writing, with B School becoming the place where people learn how to apply humanities skills to the real world. That’s a problem for the humanities disciplines (and definitely partly of their own doing), but also for a society that undervalues — or limits the practice of to law firms and board rooms — the critical thinking and writing skills trained in the humanities.
Which is a roundabout way of explaining why that CompLit PhD was a tremendous opportunity, and but I didn’t despair when I decided staying in academics wasn’t in the cards. Had it been possible to get a Media Studies job for print culture when I was on the job market, I might have stayed, but ironically, at the time those jobs all required a focus on the Internet. As it was, I was facing teaching in an English department teaching both Goethe’s and post-colonial world literature while my colleagues got to teach nothing but Dickens, which wasn’t going to be a formula for success. So I left. I occasionally run into my former profs who say they’d love to be able to engage with as many people as I’ve managed to regularly, so I guess they don’t think I made a horrible decision.
Q. After leaving your teaching position, you took off for the wilds of Asia. Was that in the plans, or just something to do between teaching and wherever you would end up? You worked as a consultant in automotive, using skills that you developed between college at Amherst and grad school. Is this how you honed the rather arcane skillset of deciphering government docs? As your later efforts proved, you were not only good at doing so, but really quite remarkable. Was there some trick to it, or were you just totally brilliant when it came to cutting through government gibberish?
A. I had grand plans when I left academics but then got diagnosed with cancer so needed something to do until I got through that. I ended up falling back into the same kind of document consulting I had done before grad school, at first very simple things, but then increasingly more interesting. Before grad school I worked for a consulting company that worked in the oil, tech, pharma, rail industries — pretty much any industry that had to do enormous, usually regulatory or quality, documents. Afterwards I worked for a Detroit auto company, consulting from home but traveling to Asia a number of times.
I presume a lot of this paper bureaucracy has moved online now, but at that time, these giant bureaucracies were all driven by paper documents. Usually, when working on these projects, you’d get one or two subject matter experts to work with and reams of documents from which to understand the underlying processes. It was a great way to learn what these companies did. And it was also not dissimilar from the kind of archival work I did in history or literature work — or, obviously, some of the weedy analysis I do on torture and surveillance bureaucracies. Some of those big corporate training or documentation projects are actually really useful, if they’re done properly. Sometimes I questioned the value of the underlying goal — was helping to convince China’s rising middle class to buy more cars really how I wanted to spend my life? But on the more complex projects, it was fascinating work.
Q. When you returned to the states, you got “sucked” into covering the Valerie Plame leak case, outed by Scooter Libby, and it ultimately resulted in your book, Anatomy of Deceit. Aside from the fact that it’s hard to imagine anyone “sucking” you into anything you don’t want to be “sucked” into, how did that happen? You didn’t have a background in law, and at that point, you had yet to establish yourself as a journalist, so why you? Your reports of Scooter Libby’s trial were among the “go to” sources that many mainstream journalists relied upon. Did you feel up to the task? Would it have been better, or at least, easier, if you had been a lawyer? Or do you see a legal education as the sort of background that hinders the vision you had?
A. The Plame case was as much about the press getting used as it was about the Vice President’s office, which made it hard for many journalists to cover. As for the law, there were several lawyer-bloggers who were also covering the case, notably Christy Hardin Smith and Jeralynn Merritt, and they covered the procedural areas, which I’m sure prevented me from embarrassing myself.
As for why me? In part it was that I had the flexibility to cover the case and ultimately the trial. It’s also true that my academic work on newspapers and narrative meant I could add something to the kind of politically driven coverage associated with the Libby case (or the Iraq War). I was used to reading large amounts of documents with a focus on the details, so I was happy to read through the documents on the case, and in any case would never have been able to rely, like the DC journos could, on what lawyers representing one or another side of that case told me in confidence. Finally, it helped that I was blogging, rather than reporting for a newspaper, as I wasn’t bound by 800 word stories focusing on one main news takeaway; I could write long posts laying out several developments at once.
Reggie Walton, who presided over the trial, has at least twice said publicly that the bloggers’ coverage (including FireDogLake, Jeralyn’s coverage, and some other bloggers unrelated to our coverage) was “more thorough” than the traditional press, and I think that’s both because we weren’t bound by the typical news reporting genres, but also because we brought different kinds of approaches to the case.
Q. ln 2007, you started writing at Jane Hamsher’s FireDogLake, which was ground zero for progressive activism in its day. Why FireDogLake? Did that go back to your coverage of Valerie Plame? How did it mesh with your personal politics? While FireDogLake did some very heavy lifting with regard to civil rights and freedom, it was certainly deep into politics (and political shenanigans) as well. Were you there for the legal issues, the political issues or both?
A. Jane really made the Libby trial coverage happen, we covered it together. So when she expanded her site, it made sense for me to go over there with my own site, which is where emptywheel started, and while I covered the auto bailout and ObamaCare, it mostly was what it still is: weedy analysis of civil liberties and national security stuff.
Q. There was a very curious period, about two months, where you were a senior policy analyst for Pierre Omidyar’s The Intercept, and then you weren’t. That was before The Intercept officially launched. What happened? What drew you into working for Omidyar? What made you decide to leave? There were rumors that it had to do with Omidyar’s donations to Ukraine opposition groups, but you denied that was the case. What was it about The Intercept that made you decide it wasn’t right for you? In retrospect, did you make the right choice?
A. It was actually just as the Intercept launched. I joined — it was only a part time role — because I thought it’d be the rare place that would fully support the kind of non-traditional journalism I do. I hoped ultimately I’d be able to get paid both for the really weedy analysis that won’t ever draw in large numbers of readers and for pieces that made that analysis more accessible. I also wanted to work at a place where I’d have lawyers who could bring FOIA lawsuits. But it was just a part time gig and they weren’t willing to pay for the weedy stuff. I left so they wouldn’t get to freeload on the weedy analysis.
Q. Torture. You were the person who figured out that the United States waterboarded Khalid Sheikh Mohammed 183 times in a single month after 9/11, based upon the Bush torture memos. How did you see what no else saw? Presumably, your skills at seeing through bureaucratic obfuscation came in handy, but so did your persistence in reading deeper than anyone else. After you broke the news, what happened? Were you in fear that the government wouldn’t invite you to its holiday parties? Were there any ramifications from being the person who exposed one of the most disgraceful episodes in our nation’s history?
A. One really nice thing about writing a blog is that you don’t have to write about one and only one story for each news item. When the traditional press wrote about those documents, the one and only one part of the memos that interested them was the horserace — how would the release play politically? — and not for the process that went into making those documents or the role those documents played in a larger process of sustaining the legal approval for torture over 6 years. I spent several days just unpacking what was in memos, doing working threads and some posts just observing what the memos disclosed.
The reference to the 183 waterboards came in a passage where Steven Bradbury tried to make his consideration of waterboarding look balanced — weighing the purported necessity to do it against what CIA’s IG had found to be excessive. In this really lawyerly voice he wrote, well, yes, KSM was waterboarded 183 times in a month but on the other hand…, as if there’s some way to make 183 waterboards in a month look like it served any real purpose. A reader and I both found that reference and I kept writing about it until eventually Huffington Post and then NYT picked it up from there.
A year later, I happened to be at DOJ when one of the press people was sending out another set of FOIAed torture documents. I said, What are you telling them it’s about? What is really there? She laughed, and admitted that I would find much more interesting things in the release than she was letting on with other journalists. Government public affairs people unsurprisingly try to limit what reporters will see in released documents by tipping them off to story-worthy but maybe not the most damning parts. The government has been tremendously successful in working the press this way in the wake of the Snowden disclosures, basically hiding stuff in plain sight while — I’m quite certain — inoculating themselves against future claims that Congress or litigants weren’t fully informed.
Q. You have done some remarkable work at your current blog, Empty Wheel, particularly your work on revealing what was happening with NSA’s surveillance. Aside from Edward Snowden, you’ve likely read more classified government reports than anyone else, maybe even within the government. First, how could you tolerate so much crap? Second, the sheer volume of papers must have been overwhelming. What made you persist? Of all the things you’ve seen, what stands out as the most outrageous thing the government did and concealed from the public?
A. I keep promising to plant a grove of trees and name it after Snowden for all the paper I’ve gone through reading both documents he released and those the government has released in response.
As I guess I’ve already made clear, I still have that academic instinct to wade through archives over years. But I’m also very much cognizant of this — the publicly released documents, far more than what comes directly from the Snowden archive — that no one else is reading. And there are public claims that the government floated, and many people still believe, which are just the result of the government making bogus claims to the FISA Court. One example is the government’s claim the PATRIOT dragnet programs were just mistakenly out of control until 2009, when all the evidence makes it clear they were just knowingly blowing off the FISC’s more stringent limits on PATRIOT authority activities over EO 12333 programs.
On what is most outrageous? There are things the government is still hiding — we still only know part of what caused the hospital crisis in 2004, for example, and FBI’s response to getting scolded on surveillance authorities in the 00s was to get more secretive, even from Congress, even as it was getting more power. Other than that it’s the confirmation of things we worried might be true — that the torture was worse than what CIA’s IG found, that the government was using terror threats they had reason to believe weren’t real to get torture and dragnet surveillance reauthorized — that most pisses me off.
Q. It was one thing to be progressive when George W. Bush ran the joint, but after Barack Obama was elected President, you demonstrated the principled approach of scrutinizing his initiatives as well. You were critical of the auto bailout and particularly Obamacare. What made you put principle over politics? Your scrutiny must have cost you some friends in liberal circles, and you suffered some criticism for not sticking with the party line. Did that change your view of Democratic party politics, liberal and progressive politics? Did you become disenchanted with the concept, or did your views evolve after seeing the damage politicians had done?
A. Oh, I supported the auto bailout—I’m a Michigander! I would have done some things differently, particularly to ensure the lasting value of the investment put in. But I supported it and think the auto bailout worked better than the serial bank bailouts have.
On ObamaCare, I support the idea of making health care more accessible and cost-efficient. But I was critical of a number of things — like overall affordability and the Cadillac tax — that boosters wanted to gloss over. And here we are, six years later, finally admitting the Cadillac tax needs to be fixed! Pointing that out while the bill was still being debated absolutely got me disinvited from some swank party functions, but it probably matters less for me since I don’t live in DC. And I don’t think the demand for party loyalty in the face of bad policy is any different on the Republican side than it is on the Democratic, or even within a movement. I pissed off civil liberties lobbyists at least as much during USA Freedom Act as I did Democrats during ObamaCare, especially since it was clear, on USAF, I had done the analysis some of the lobbyists hadn’t.
I haven’t so much become disenchanted as focused more on working, where possible, in transpartisan coalitions, such as the left-right coalition that works on surveillance issues together. Partisan organizations are a very crucial part of influencing policy in DC, but you also need to be working with people who are willing to upset the DC consensus when necessary.
Q. How does your blog, Empty Wheel, fund itself? And how do you fund yourself? You don’t run ads, which would be unseemly at best, and you have no open and notorious sponsors, but blogs don’t pay for themselves. You have a donate button, but does that bring in sufficient support to keep Empty Wheel alive? And certainly you need to eat, not to mention enjoy the occasional moment when you’re not trying to figure out what “connection chaining” means in the USA Freedom Act. How does Dr. Wheeler manage it? And how long can Dr. Wheeler keep it up? After all, without Marcy Wheeler and Empty Wheel, who is going to read through all those pages of bureaucratic gibberish to keep us informed?
A. The big secret to my funding model is living in an inexpensive city, Grand Rapids, MI, with a gainfully employed spouse and no kids. It’s a lot easier to maintain this kind of independence if you’re not living in DC or trying to save for kids’ college tuition. I pay my bills by writing for others and getting donations, sometimes generous, from readers, though I keep meaning to raise a lot more money so I can start bringing FOIA lawsuits. So if anyone wants to donate …
Seriously, though, I fill a gap that larger organizations really need to address (and fund). Since 9/11, FOIA lawsuits and leaks have been as important to learning what the government is really doing as source-based journalism. And aside from VICE’s Jason Leopold and NYT’s Charlie Savage, most of the FOIA suits are being done by NGOs — ACLU, EFF, Judicial Watch, and some others. But those NGOs aren’t necessarily unpacking those documents; with one or two exceptions, not even the lawyers litigating those programs are. Plus, on surveillance (torture is different, and the Gitmo lawyers have been great on these issues, but of course they’re all bound by protection orders), a lot of these disclosures aren’t going to be usable unless it gets highlighted to defense attorneys, because only their clients will have standing to do anything about these programs. EFF and ACLU are, to some extent, bridging out to defense attorneys. But still, we’re getting some transparency but thus far, and it largely means formerly secret things are now being hidden in plain sight.