Can the president of Brazil jail the Intercept’s Glenn Greenwald for publishing leaks?

Glenn Greenwald Photo by Mateus Bonomi / AGIF (via AP)

On June 9, the Intercept began publishing a series of investigative stories that sent shocks through Brazil. The pieces appeared to supply evidence that Sergio Moro, Brazil’s Justice Minister and the former top judge in a major corruption investigation, colluded with federal prosecutors to convict prominent political figures—among them, President Luiz Inácio Lula da Silva, who had been leading 2018 election polls and was rendered ineligible to run. Drawing from private chats leaked to Glenn Greenwald—the Intercept’s founder, who lives in Rio—the reports tarnished Moro, once the face of an anti-corruption platform that helped boost President Jair Bolsonaro, a right-wing firebrand, into office. Greenwald now faces threats of jail time, in what has become Brazil’s first big test of the legal freedom to publish leaks. 

And there is more to come, Greenwald says. The material feeding the Intercept’s pieces—which focus on a scandal involving Operação Lava Jato (“Operation Car Wash”), the country’s largest-ever probe into bribery and corruption (so-called because it uncovered that a car wash chain was used to launder money)—may be “the largest trove of leaked documents in the history of journalism and media,” he tells CJR. Bigger, according to Greenwald, than the pile provided to him by Edward Snowden, a leak that resulted in breathtaking revelations about the US National Security Agency and won Greenwald a Pulitzer Prize.

Soon after the first Car Wash piece was published, Brazilian federal prosecutors released a statement accusing the Intercept of disseminating “biased content” and taking “advantage of the hacker’s action to misrepresent facts” to serve “the interests of criminals hit by Lava Jato,” which they called a “sordid performance” and “fake news.” On Twitter, Moro took a decisive step further, referring to the Intercept as “the site allied with criminal hackers.”

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From the start, Greenwald said that he did not know the identity of the source who leaked the chats, and that he decided to report on them because they were in the public interest. Leandro Demori, the Intercept Brazil’s executive editor, tells CJR that their team worked for three weeks fact-checking the material and verifying that it had not been adulterated, comparing the language with copies of private chats provided by other sources and journalists, inside and outside the Intercept, who had exchanged messages with Car Wash prosecutors included in the leaks. The Intercept’s checkers also reviewed legal proceedings and original documents mentioned in the chats. “They all matched,” Demori says. 

In addition, the Intercept gave the leaks to other news outlets—Folha de S. Paulo, Brazil’s largest newspaper, and Veja, a conservative magazine—which assigned their own staffs to dig into the message archives. “All communications are true—word by word,” Veja stated in an editorial. The Intercept later sent copies of some of the chats to El País Brazil for its own fact-checking purposes. From an independent source, El País obtained original transcripts of some of the chats and compared them to the documents leaked to the Intercept. “They are identical,” El País declared in its Portuguese edition.

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But due diligence did not insulate Greenwald from the government’s fury. On July 11, he was called to testify before a congressional committee; he faced attacks, mainly from members of President Bolsonaro’s party, who demanded he reveal his source. “If you don’t prove this information, it is fake and you’re a liar. If you prove it, then you’re a criminal because you hacked someone’s phone,” Carla Zambelli, a legislator, said.

“Who should be judged, convicted, and in prison is the journalist!” her colleague Katia Sastre chimed in. Another legislator, Carlos Jordy, demanded that Greenwald be deported, and that the Intercept be shut down.

Throught July, the Brazilian internet was hijacked by conspiracy theories involving hackers, defamatory claims of “fake news,” and homophobic and xenophobic insults against Greenwald, who is a gay American married to a Brazilian citizen. Hashtags like #DeportGlennGreenwald were trending on Twitter. An online petition calling for his banishment from the country received nearly 100,000 signatures. “Get out of Brazil, you are disgusting,” read a banner held during a demonstration in support of Moro. Death threats mounted against Greenwald, his family, and the Intercept’s staff. 

O Antagonista, a right-wing news site, reported that federal police, now under Moro’s command, were investigating Greenwald’s finances (an allegation that officials later denied). Finally, President Bolsonaro joined the crowd of dissenters. For weeks, he repeatedly assailed Greenwald, saying that he believed the Intercept had committed a crime. On July 27, the president told journalists in Rio that Greenwald could “do time” in Brazil. 

 

Bolsonaro’s threat was menacing, though it had no legal basis. In Brazil, as in the United States, the constitution protects expression from government interference and prohibits Congress from writing any laws that hinder press freedom. In 2009, the Supreme Court revoked a dictatorship-era press law that imposed severe restrictions and penalties on journalists, including imprisonment. In a milestone ruling, the Court recognized the freedom of expression, including the right of journalists to publish information of public concern regardless of its origin. “The ruling also reinforced citizens’ right to information, and it has guided the following decisions of the Supreme Court and lower courts,” Taís Gasparian, a Brazilian media attorney and a contributor to Columbia’s Global Freedom of Expression initiative, says. (Among her clients is Folha de S. Paulo, one of the papers that partnered with the Intercept to publish information from the Car Wash leaks.)

“Confidential information and documents have been leaked to the media before, and the Supreme Court has ruled that it is not up to the press, but to those who possess the information, to protect confidentiality,” Gasparian says. “The press has the right, and I’d say the duty, to publish content that is newsworthy and of public interest.”

Greenwald tells CJR that the Intercept considered this. “We said from the very beginning that we were never going to publish any photos or videos or messages that were purely private in nature,” he explains. “We’ve been very careful to make sure that everything that we’re publishing is about how they’re using public power.”

Under Brazilian law, the act of intercepting information and the act of publishing it are distinct, according to Walter Vieira Ceneviva, a media attorney and former president of the Press Freedom Commission of the Brazilian Bar Association. “Even if the origin of the information turns out to be criminal, this does not associate the journalist with the crime,” he says. “And there are no legal restrictions to the journalist’s right to publish information of public concern that has been illegally obtained by a third party.”

That’s also the case in the US, though there are sometimes caveats. “In this country, the Espionage Act says that you can be criminally prosecuted if you knowingly disseminate national security information,” says David Schulz, a First Amendment lawyer and a professor at Yale, where he runs a Media Law Clinic. Technology has transformed what this means for journalists, he explains, because so much information can be shared so easily. “But I think the legal principles should remain the same,” he adds, “that if the journalist gets access to newsworthy information, innocently, with no wrongful conduct, the publication should be protected by the First Amendment.”

In the case of the Intercept Brazil, the ruling should be clear: “In essence, things that concern the public life of public men have no secrecy and are not subject to the protection of intimacy or privacy,” Vieira Ceneviva says. “A judge’s activity is a classic example of the public man. If the judge speaks with a prosecutor about going to a barbecue, that’s private. But what the judge does, thinks, says as a judge is public.”

Daniel Bramatti, president of the Brazilian Association of Investigative Journalists, says that even though reporters are not responsible for how a source acquires information, he still advises them to consider the motive behind a leak. “We need to have in mind that it may be just a tip or part of the story, and it is the responsibility of the journalist not just to look for newsworthy information material leaked, but to seek information that is missing there,” he argues. The 2016 Democratic National Committee case is a good example of this, he says: “For me, the source and motives of the hacking in that case is as newsworthy and of public interest as the content of the leaks per se.” 

 

By the end of July, Brazilian authorities announced that federal police had arrested four people for allegedly hacking 1,000 cell phones belonging to various government officials. In testimony leaked to GloboNews TV, one of the suspects confessed to having sent the chats to Greenwald as an anonymous source who sought no compensation; the suspect claimed to have been motivated by Greenwald’s past coverage of Snowden’s NSA leaks. The suspect also named a former congresswoman, Manuela D’Ávila, who was a 2018 vice presidential candidate in Brazil, as the person who provided Greenwald’s contact information. In a note to the press, she confirmed this, but said that she didn’t know who the hacker was—he’d contacted her anonymously. The revelations fueled a new wave of attacks against Greenwald.

More than two dozen organizations around the world have condemned the Bolsanaro administration’s threats against Greenwald and the Intercept, lining up behind a Reporters Without Borders call for press freedom in Brazil. The Washington Post’s executive editor Martin Baron and the Guardian’s editor-in-chief Katharine Viner joined the choir. Greenwald has stood by his defense of leakers—to no one’s surprise, given his affinity for Snowden, Julian Assange, and others—regardless of motivation. “Sometimes, you have a source with terrible motives, like Deep Throat, who uncovered Watergate,” Greenwald says. “He was angry that he hadn’t been named the FBI director and wanted vengeance on Nixon and others. But the information he provided was incredibly newsworthy. Other times, you have sources that have great motives, but their information is worthless, not accurate, or not interesting.”

To him, a story is a story, regardless of how it becomes known. “The reasons why a source gives it to you are not relevant to a journalist, it is just not part of the analysis that you take into account,” Greenwald says. “What matters are just two things: Is the material authentic? And is it in the public interest?”

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Adriana Carranca is a Brazilian journalist and a reporting fellow with the Global Migration Project at Columbia University. Follow her on Twitter @AdrianaCarranca.