[governance] Obama's war on leaks undermines investigative journalism - WPost column
Riaz K Tayob
riaz.tayob at gmail.com
Sun May 26 16:54:56 EDT 2013
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Leonard Downie: Obama's war on leaks undermines investigative journalism
By Leonard Downie Jr., Published: May 24
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.
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"no apologies"
<http://www.washingtonpost.com/blogs/post-politics/wp/2013/05/16/obama-no-apologies-for-leaks-investigation/>
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, Obama said
<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>
he was "troubled by the possibility that leak investigations may chill
the investigative journalism that holds government accountable."
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 Freedom of Information Act requests
<http://articles.washingtonpost.com/2013-03-14/politics/37714147_1_federal-agencies-government-transparency-foia>
on the grounds of national security or protection of internal deliberations.
The secret and far-reaching subpoena and seizure of two months of
records for 20 Associated Press phone lines
<http://articles.washingtonpost.com/2013-05-13/world/39226618_1_classified-information-obama-administration-justice-department>
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 an "underwear bomb"
<http://articles.washingtonpost.com/2012-05-07/world/35455296_1_underwear-bomb-aqap-explosive-device>
to detonate aboard U.S.-bound aircraft.
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.
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 very, very serious
leak"
<http://articles.washingtonpost.com/2013-05-14/world/39248139_1_phone-records-justice-department-holder>
that "put the American people at risk." But the administration has not
explained how.
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.
In another, investigators seized the phone records of Fox News reporter
James Rosen
<http://articles.washingtonpost.com/2013-05-19/local/39376688_1_press-freedom-justice-department-records>,
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.
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.
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.
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.
The Justice guidelines
<http://www.gpo.gov/fdsys/pkg/CFR-2011-title28-vol2/pdf/CFR-2011-title28-vol2-sec50-10.pdf>
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."
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 interview
<http://www.cbsnews.com/8301-3460_162-57585213/ap-president-blasts-unconstitutional-phone-records-probe/>
with CBS's "Face the Nation." In a letter of protest
<http://www.usatoday.com/story/news/2013/05/13/doj-seizes-ap-phone-records/2156819/>
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."
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.
"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."
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.
I can remember only one similar incident during my 17 years as executive
editor of The Post. In 2008, FBI Director Robert S. Mueller formally
apologized
<http://articles.washingtonpost.com/2008-08-09/news/36836633_1_phone-records-michael-p-kortan-fbi-agents>
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.
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."
The president also called on Congress to revive and pass a federal
"shield law"
<http://www.washingtonpost.com/blogs/post-politics/wp/2013/05/15/white-house-pushing-new-federal-shield-law/>
--- 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.
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?
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.
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 memos and directives
<http://voices.washingtonpost.com/federal-eye/2009/01/_in_a_move_that.html>
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.
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.
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.
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 AP analysis
<http://bigstory.ap.org/article/us-citing-security-censor-more-public-records>
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.
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.
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."
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.
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 darkening clouds of
scandal
<http://articles.washingtonpost.com/2013-05-17/opinions/39324662_1_watergate-comparisons-house-republicans>,
its credibility will become increasingly important to the president's
legacy. It is not too late for Obama's actions to match his rhetoric.
**
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