<html>
<head>
<meta http-equiv="content-type" content="text/html; charset=ISO-8859-1">
</head>
<body text="#000000" bgcolor="#FFFFFF">
<br>
<div class="moz-forward-container">
<meta http-equiv="content-type" content="text/html;
charset=ISO-8859-1">
<hr>
<div id="slug_flex_ss_bb" style="display: block;"> </div>
<div id="content">
<h1 property="dc.title">Leonard Downie: Obama’s war on leaks
undermines investigative journalism</h1>
<h3 property="dc.creator"> By Leonard Downie Jr., <span
class="timestamp updated processed"
epochtime="1369352102000" datetitle="published"
pagetype="leaf" contenttype="article">Published: May 24</span>
</h3>
<p> Leonard Downie Jr. is a vice president at large of The
Washington Post, where he served as executive editor from 1991
to 2008. He is the Weil family professor of journalism at the
Walter Cronkite School of Journalism at Arizona State
University and a board member of the nonprofit Investigative
Reporters and Editors. </p>
<p>For the past five years, beginning with his first
presidential campaign, Barack Obama has promised that his
government would be the most open and transparent in American
history. Recently, while stating that he makes<a
moz-do-not-send="true" data-xslt="_http"
href="http://www.washingtonpost.com/blogs/post-politics/wp/2013/05/16/obama-no-apologies-for-leaks-investigation/">
“no apologies”</a> for his Justice Department’s
investigations into suspected leaks of classified information,
the president added that “a free press, free expression and
the open flow of information helps hold me accountable, helps
hold our government accountable and helps our democracy
function.” Then, in his National Defense University speech
Thursday, <a moz-do-not-send="true" data-xslt="_http"
href="http://www.washingtonpost.com/politics/president-obamas-may-23-speech-on-national-security-as-prepared-for-delivery/2013/05/23/02c35e30-c3b8-11e2-9fe2-6ee52d0eb7c1_print.html">Obama
said</a> he was “troubled by the possibility that leak
investigations may chill the investigative journalism that
holds government accountable.”</p>
<p>But the Obama administration’s steadily escalating war on
leaks, the most militant I have seen since the Nixon
administration, has disregarded the First Amendment and
intimidated a growing number of government sources of
information — most of which would not be classified — that is
vital for journalists to hold leaders accountable. The White
House has tightened its control over officials’ contacts with
the news media, and federal agencies have increasingly denied
<a moz-do-not-send="true" data-xslt="_http"
href="http://articles.washingtonpost.com/2013-03-14/politics/37714147_1_federal-agencies-government-transparency-foia">Freedom
of Information Act requests</a> on the grounds of national
security or protection of internal deliberations.</p>
<p>The secret and far-reaching subpoena and seizure of two
months of records for 20 <a moz-do-not-send="true"
data-xslt="_http"
href="http://articles.washingtonpost.com/2013-05-13/world/39226618_1_classified-information-obama-administration-justice-department">Associated
Press phone lines</a> and switchboards — used by more than
100 AP reporters in three news bureaus and the House of
Representatives — is especially chilling for journalists and
their sources. The effort was reportedly part of a Justice
Department and federal grand jury investigation of an AP story
from May 7, 2012, revealing the CIA’s success in penetrating a
Yemen-based al-Qaeda group that had developed <a
moz-do-not-send="true" data-xslt="_http"
href="http://articles.washingtonpost.com/2012-05-07/world/35455296_1_underwear-bomb-aqap-explosive-device">an
“underwear bomb”</a> to detonate aboard U.S.-bound aircraft.</p>
<p>At the request of the White House and the CIA, the AP held
the story for five days to protect an ongoing intelligence
operation. The AP’s discussions with government officials were
similar to many I participated in with several administrations
during my years as executive editor of The Washington Post,
when I was weighing how to publish significant stories about
national security without causing unnecessary harm.</p>
<p>After the AP story appeared, Obama administration officials
spoke freely about the operation. But when Republicans accused
the administration of leaking classified information to boost
the president’s counterterrorism resume in an election year,
the Justice Department began its wide-ranging investigation to
find the story’s unnamed sources — including secretly
subpoenaing and seizing the AP’s call logs earlier this year.
Only after Justice finally notified the news agency of the
seizure this month and the controversy exploded did Attorney
General Eric Holder say that the AP story resulted from <a
moz-do-not-send="true" data-xslt="_http"
href="http://articles.washingtonpost.com/2013-05-14/world/39248139_1_phone-records-justice-department-holder">“a
very, very serious leak”</a> that “put the American people
at risk.” But the administration has not explained how.</p>
<p>Such investigations are not unusual, especially in national
security cases, but they have proliferated in the Obama
administration. Six government officials have been prosecuted
since 2009 under the 1917 Espionage Actfor unauthorized
disclosures of classified information, twice as many as in all
previous U.S. administrations combined. One case involved a
classic whistleblower: a senior executive of the National
Security Agency who had told the Baltimore Sun about expensive
government waste on digital data-gathering technology.</p>
<p>In another, investigators seized the phone records of Fox
News reporter <a moz-do-not-send="true" data-xslt="_http"
href="http://articles.washingtonpost.com/2013-05-19/local/39376688_1_press-freedom-justice-department-records">James
Rosen</a>, searched his personal e-mails, tracked his visits
to the State Department and traced the timing of his phone
conversations with Stephen Jin-Woo Kim, a State Department
security adviser. Kim was charged in 2010 as the suspected
source of a Fox News report about North Korean nuclear weapon
testing. Perhaps most disturbing, documents related to the
secret search warrant for Rosen’s phone and e-mail records
cited him as a co-conspirator in the espionage case.</p>
<p>This appeared to journalists to put Rosen in unprecedented
jeopardy for doing his job. Although the president said in his
speech Thursday that “journalists should not be at legal risk
for doing their jobs,” he was nevertheless adamant about
pursuing government officials who he said “break the law,”
presumably by discussing national security matters and other
classified information with reporters, even if that scares off
officials from becoming whistle-blowers or even having any
contact with reporters.</p>
<p>In addition to these investigations and others believed to be
underway, countless government officials have been subjected
to accusatory interviews and lie-detector tests to ferret out
leakers. And contacts with journalists have been routinely
monitored. Not surprisingly, reporters tell me that more and
more administration officials are afraid to talk to them.</p>
<p>Decades-old Justice Department guidelines restrict federal
subpoenas for reporters or their phone records, saying they
should be used only as a last resort in an investigation.
Justice officials have contended that this was the case with
the Associated Press leak. But while claiming that it first
conducted hundreds of interviews and reviewed tens of
thousands of documents, Justice has not explained why it
needed to undertake what appears to be a menacing and
unjustified fishing expedition.</p>
<p> <a moz-do-not-send="true" data-xslt="_http" target="_blank"
href="http://www.gpo.gov/fdsys/pkg/CFR-2011-title28-vol2/pdf/CFR-2011-title28-vol2-sec50-10.pdf">The
Justice guidelines</a> require that “the subpoena should be
as narrowly drawn as possible,” that the targeted news
organization “shall be given reasonable and timely notice” to
negotiate the subpoena with Justice or to fight it in court,
and that “the approach in every case must be to strike the
proper balance between the public’s interest in the free
dissemination of ideas and information and the public’s
interest in effective law enforcement and the fair
administration of justice.”</p>
<p>Only half a dozen AP journalists reported, wrote and edited
the May 7, 2012, story, but “thousands upon thousands of
news-gathering calls” by more than 100 AP journalists using
newsroom, home and mobile phones are included in the records
seized by Justice investigators, AP President Gary B. Pruitt
said in an <a moz-do-not-send="true" data-xslt="_http"
href="http://www.cbsnews.com/8301-3460_162-57585213/ap-president-blasts-unconstitutional-phone-records-probe/">interview</a>
with CBS’s “Face the Nation.” In a <a moz-do-not-send="true"
data-xslt="_http"
href="http://www.usatoday.com/story/news/2013/05/13/doj-seizes-ap-phone-records/2156819/">letter
of protest</a> to Holder, Pruitt said that “these records
potentially reveal communications with confidential sources
across all of the newsgathering activities undertaken by the
AP during a two-month period, provide a road map to AP’s
newsgathering operations and disclose information about AP’s
activities and operations that the government has no
conceivable right to know.”</p>
<p>Without any official justification, such an indiscriminate
intrusion into one of the most important American news
organizations appears to be a deliberate attempt to intimidate
journalists and their sources — or at least indicates a
willingness to tolerate such intimidation as collateral damage
of an investigation.</p>
<p>“I really don’t know what their motive is,” Pruitt said on
“Face the Nation.” But, he added, “I know what the message
being sent is: If you talk to the press, we’re going to go
after you.”</p>
<p>By secretly serving the subpoena directly on phone companies
without notifying the AP, the Justice Department avoided
negotiations with the news agency or a court challenge over
its scope. This is permitted as an exception to the Justice
guidelines if prior notification and negotiations would “pose
a substantial threat to the integrity of the investigation.”
But there has been no explanation of what threat might have
been posed in this case, when the preservation of the records
by the phone companies was never in question and the news leak
under investigation had occurred long before.</p>
<p>I can remember only one similar incident during my 17 years
as executive editor of The Post. In 2008, FBI Director Robert
S. Mueller <a moz-do-not-send="true" data-xslt="_http"
href="http://articles.washingtonpost.com/2008-08-09/news/36836633_1_phone-records-michael-p-kortan-fbi-agents">formally
apologized</a> to me and the executive editor of the New
York Times for the secret seizure four years earlier of the
phone records of our foreign correspondents working in
Jakarta, Indonesia — because the Justice guidelines had been
violated and no subpoena had been issued. But I recall a
number of instances in which other federal investigative
requests were successfully negotiated in ways that fully
protected our news-gathering independence in accordance with
the guidelines.</p>
<p>In Thursday’s speech, Obama said he has raised the impact of
federal leaks investigations on accountability journalism with
Holder. The president said the attorney general “agreed to
review existing Department of Justice guidelines governing
investigations that involve reporters, and he’ll convene a
group of media organizations to hear their concerns as part of
that review.”</p>
<p>The president also called on Congress to revive and pass a
federal <a moz-do-not-send="true" data-xslt="_http"
href="http://www.washingtonpost.com/blogs/post-politics/wp/2013/05/15/white-house-pushing-new-federal-shield-law/">“shield
law”</a> — similar to those in 40 states and the District —
that would increase defenses, including judicial appeals, for
journalists who face legal attempts to force them to reveal
confidential sources and reporting contacts. It is unclear
whether the legislation, which stalled in the last Congress
after negotiations with the news media, would have prevented
the Justice Department’s sneak attack against the AP.
Nevertheless, its passage would provide significant new
protection for accountability journalism and government
whistleblowing. White House support of the legislation had
been lukewarm, so the timing and ardor of Obama’s new embrace
remains suspect, depending on the administration’s future
actions.</p>
<p>I can only speculate about the politics at play here. If 2012
had not been a presidential election year, would Republicans
have characterized news reports and Obama administration
announcements about successful counterterrorism operations as
“leaks” endangering national security? Would the
administration have decided that it was necessary to react by
aggressively investigating leaks for which there is not yet
public evidence that national security was seriously
compromised? If not for the 2014 congressional elections,
would Republicans now be hypocritically condemning the Justice
Department’s seizure of phone records in the AP case?</p>
<p>Hardly anything seems immune from constitutionally dangerous
politicking in a polarized Washington. But that’s no excuse
for playing games with the First Amendment and the right and
responsibility of the news media to keep Americans informed
about what their government is doing in their name and for
their protection.</p>
<p>After the 2001 terrorist attacks, the George W. Bush
administration increased government secrecy in a variety of
ways that Obama, as candidate and president, vowed to reverse.
Soon after taking office, Obama and Holder issued <a
moz-do-not-send="true" data-xslt="_http"
href="http://voices.washingtonpost.com/federal-eye/2009/01/_in_a_move_that.html">memos
and directives</a> instructing government agencies to be
more responsive to Freedom of Information Act (FOIA) requests
and to make more government information public through Web
sites and social media.</p>
<p>On the plus side, more government information is now
available online, much of it “big data” collected and
generated by federal agencies. Some of it is potentially
useful for consumers and businesses, such as student loan and
grant information, resources for seniors, ways to do business
with the government, federal jobs, volunteer opportunities,
diet and medical information, assistance for farming and solar
energy development, and much more. Some of the data about
government spending and regulations also are useful for the
news media and accountability reporting.</p>
<p>But there’s not nearly enough of what journalists and
citizens need to hold the government truly accountable —
whether information on national security, government
surveillance and immigration policies, or specifics about
stimulus spending and officials’ travel and other perks.</p>
<p>After some initial improvement by the Obama administration in
fulfilling FOIA requests, delays and denials are growing
again, according to journalists and studies by news
organizations. An <a moz-do-not-send="true" data-xslt="_http"
href="http://bigstory.ap.org/article/us-citing-security-censor-more-public-records">AP
analysis</a> published in March found that “more often than
it ever has, [the Obama administration] cited legal exceptions
to censor or withhold the material” and “frequently cited the
need to protect national security and internal deliberations.”
Some of the administration’s new open-information policies
also contain broad and vague exceptions that could be used to
hide records crucial to accountability reporting about such
subjects as health-care payments, government subsidies,
workplace accidents or detentions of terrorism suspects.</p>
<p>Every administration I remember has tried to control its
message and manage contacts with the media. As a senior editor
for more than a quarter-century, I frequently received
complaints from administrations of both parties about coverage
they considered unfavorable, along with occasional and mostly
empty threats to cut off access. Journalists who covered the
George W. Bush administration said they encountered arrogant
attitudes toward the press but were usually able to engage
knowledgeable officials in productive dialogue.</p>
<p>But reporters covering the Obama administration say more and
more officials will no longer talk at all and refer them to
uncommunicative or even hostile and bullying press aides. “The
White House doesn’t want anyone leaking,” said one senior
Washington correspondent who, like others, described a tight,
difficult-to-penetrate inner circle that controls the
administration’s decisions and micromanages its message.
“There are few windows on decision-making and governing
philosophy. There is a perception that Obama himself has
little regard for the news media.”</p>
<p>Continuing what worked so successfully during two
presidential election campaigns, Obama and his administration
have instead engaged citizens directly through social media,
friendly bloggers, radio and video. It amounts to the White
House reporting on itself, presenting an appearance of greater
openness while avoiding penetrating questions from journalists
who have the knowledge and experience to do meaningful
accountability reporting. The administration’s media
manipulation extends even to photography: Professional
photojournalists are banned from many White House events and
presidential activities; only approved images of Obama taken
by a White House photographer are supplied to the news media.</p>
<p>Most Americans may not care much about the Obama
administration’s openness to the news media or the potential
damage to the First Amendment and government accountability
resulting from its aggressive war on leaks. But as the
administration copes with second-term governing challenges,
real national security threats and <a moz-do-not-send="true"
data-xslt="_http"
href="http://articles.washingtonpost.com/2013-05-17/opinions/39324662_1_watergate-comparisons-house-republicans">darkening
clouds of scandal</a>, its credibility will become
increasingly important to the president’s legacy. It is not
too late for Obama’s actions to match his rhetoric.</p>
<p> <strong> </strong> </p>
<p>Read more from <a moz-do-not-send="true" data-xslt="_http"
href="http://www.washingtonpost.com/opinions">Outlook</a>,
friend us on <a moz-do-not-send="true" data-xslt="_http"
href="http://www.facebook.com/washpostoutlook">Facebook</a>,
and follow us on <a moz-do-not-send="true" data-xslt="_http"
href="http://www.twitter.com/postoutlook">Twitter</a>. </p>
</div>
<div id="slug_sponsor_links_bt" style="display: block;"> </div>
<p>© The Washington Post Company</p>
<br>
</div>
<br>
</body>
</html>