Category Archives: Wikileaks

A history of journalism in two minutes?

By Christopher B. Daly

That’s what the new film “The Fifth Estate” promises in its opening sequence. According to a story in the NYTimes, a specialty production company in Venice, Calif., known as Prologue, has done just that. Since it takes me 15 weeks, lecturing twice a week for 80 minutes at a pop (or, about 2,400 minutes a semester) and I don’t get through all my material, I guess my hat’s off to them.

Can’t wait to see “The Fifth Estate,” which is a dramatization of the story of Wikileaks founder Julian Assange. I better not be at the popcorn stand or in the bathroom when the movie starts, or I could miss the whole history of journalism.

A still from the opening sequence of "The Fifth Estate"

A still from the opening sequence of “The Fifth Estate”

If you’ve seen it, please leave a comment and let us all know what you thought.

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Filed under Journalism, journalism history, Wikileaks

DO JOURNALISTS HAVE A RIGHT TO PROTECT THEIR SOURCES? A federal appeals court rules – wrongly – that they do not.

By Christopher B. Daly

A federal appeals court recently dealt a blow to press freedom by ruling that there is no legal basis for an American reporter to protect the identity of a confidential source if a prosecutor demands to know it. This is not the last word on the subject, but still, it was a setback because the ruling last Friday came from the 4th U.S. Circuit of Appeals, the level just below the Supreme Court. (Not only that, but the 4th Circuit has jurisdiction over Virginia and Maryland, which covers a lot of federal agencies, including the Pentagon and the CIA.)

The case is important because it is part of a recent upsurge in federal cases attempting to stop “leaks” of classified information by intimidating journalists. The case is also important because it strengthens the hand of the Justice Department and federal prosecutors (at least in the 4th Circuit) to chill whistle-blowers, pressure journalists to give up their sources, and jail those reporters who won’t do so.

The July 19 ruling runs to 118 pages. Below is my analysis of all the major points made in both the majority ruling and the dissent. Overall, I find that the majority ruling was arbitrary, biased, and flat-out wrong. I believe that the dissent has it right.

I am approaching this ruling not as a lawyer, judge, prosecutor, or law professor. My main credential is one that I share with all the parties (including the judges) in this case: CITIZEN. I believe I have a right to read the Constitution and the statutes and the evidence, draw my own conclusions, and share them with you. I approach this as an advocate for press freedom. To be specific, I am an advocate of the public’s right to know what our government is doing. To that end, press freedom is instrumental, but it is also incidental. The real purpose of the First Amendment is to ensure that we, the people, would always have the means to gather and share the information we need to govern ourselves and prevent the resurgence of tyranny.

[Some brief background: The case is U.S. v. Sterling. It is a criminal case against Jeffrey A. Sterling, a former CIA officer who has a major beef with the agency. Sterling, who is black, has charged the CIA with racial discrimination, and he has a conflict with the agency over material he would like to publish in his memoir. The CIA claims that he divulged classified information to a journalist in violation of the Espionage Act of 1917, as amended. Sterling maintains that he is a target of CIA retaliation because he divulged a botched operation. The journalist in question is James Risen, a Pulitzer Prize-winning expert on national security and veteran reporter for the New York Times. He is also an author of several books, including the one at issue, State of War (2006, Free Press). In the book, Risen revealed details about a CIA operation aimed at undermining Iran’s nuclear program. Federal prosecutors issued a subpoena ordering Risen to appear before a grand jury and reveal his source. Risen has refused and vows to go to jail instead. The underlying case, U.S. v. Sterling, has yet to come to trial. The 4th Circuit ruling had to do with pre-trial motions in the Sterling case. The constitutional issue is whether, under the First Amendment or some other basis, reporters in America have the right to protect the identity of their sources, even when they are ordered to do so in a criminal case. In other words, do they enjoy a legal “privilege” that frees them from having to give testimony? Do they have a “testimonial privilege”? If so, is it absolute?]

 

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The Circuit Court opinion begins with the majority ruling (in a 2-1 split), written by Chief Judge William Byrd Traxler, Jr. The majority opinion opens with some factual background, covered above.

p. 5

Traxler notes that Sterling was indicted on a charge of illegally disclosing classified information and observes that

 he may have done so in retaliation for the CIA’s decision to terminate his employment and to interfere with his efforts to publish such classified information in his personal memoirs.

So, as to MOTIVE, Sterling is not accused of “aiding the enemy” – unlike, say, leaker Bradley Manning.

p. 6: In 2000, Sterling filed a federal lawsuit against the CIA charging employment discrimination – a classic “disgruntled employee” if there ever was one. These folks are the natural target for reporters.

p. 7: In Oct. 2001, the CIA sacked Sterling.

He was reminded of his legal duty to protect secrets and asked to sign an acknowledgement. He refused.

p. 8: March 4, 2003. Sterling filed a second suit against the CIA, protesting the way they wanted to censor his memoir.

March 5, 2003. Sterling goes to the Senate Intelligence committee and divulges information to staffers about the Iranian intel program.

“Telephone records indicate that Sterling called Risen seven times between February 27 and March 29, 2003.”

Hmmm… wonder how the government got those phone records. Still, no crime there.

One thing that’s clear: Sterling and the agency are developing a world-class hatred for each other.

p. 9: 

“On April 3, 2003, Risen informed the CIA and the National Security Council that he had classified information concerning Classified Program No. 1 and that he intended to publish a story about it in The New York Times. In response, senior administration officials, including National Security Advisor Condoleezza Rice and Director of the CIA George Tenet, met with Risen and Jill Abramson, then Washington Bureau Chief of The New York Times, to discuss the damage that publication would cause to national security interests and the danger to the personal safety of the CIA asset involved in the operation. Several days later, Ms. Abramson advised the administration that the newspaper would not publish the story.”

Worth noting: The government made a reasoned request to protect a current “asset” – which is to say, an active spy. The newspaper agreed. Fat lot of good it did them. You do the govt a big favor and they turn around and screw you.

p. 10: Jan 2006, Risen publishes State of War, in which he used the stuff that the Times would not publish. [Presumably, that “asset” was long gone by then.]

“Risen does not reveal his sources for the classified information in Chapter 9, nor has he indicated whether he had more than one source. However, much of the chapter is told from the point of view of a CIA case officer responsible for handling Human Asset No. 1. The chapter also describes two classified meetings at which Sterling was the only common attendee.”

Dec. 22, 2010, Sterling indicted. Subpoenas issued for Risen to testify before grand juries and identify his source.  He moves to quash the subpoena (i.e., make it go away and end his legal problem).

 

p. 12:

“The district court held that Risen had “a qualified First Amendment reporter’s privilege that may be invoked when a subpoena either seeks information about confidential sources or is issued to harass or intimidate the journalist,” id. at 951 (emphasis added), and that the government could overcome the privilege only by meeting the three-part test that this circuit established for reporters’ claims of privilege in civil cases in LaRouche v. National Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986).”

 

So, in the first round, Risen actually won. The district court judge agreed that the First Amendment protects journalists in most situations. (Hence, the “qualified” privilege. See below.)

p. 13. Oh, and by the way, the government would like to protect the identity of its secret witnesses while forcing Risen to name his. That’s rich, but, of course, they are going to get their way.

p. 15-16: Traxler announces the new bottom line:

 There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”  [emphasis added/ CBD]

As his main precedent, Traxler cites the 1972 Branzburg case, decided 5-4 by the U.S. Supreme Court. On a close call more than 40 years ago, SCOTUS said it could not find a legal “privilege” for a journalist in the First Amendment. In plain English, that means that the news-gathering function of journalism does not extend to protecting sources – at least not when doing so conflicts with the duty of prosecutors in criminal cases to bring “every man’s evidence” into court. The journalists had hoped to establish that – like doctors, psychotherapists, spouses, clergy, and lawyers themselves – members of the public have an interest in knowing that they can confide in any of those people without having their confidences betrayed in open court. I believe that the Branzburg ruling was wrong, if narrowly so, and it has been under attack ever since.

Getting back to the quoted section above, here’s a question: What about a confidential source who does not commit a crime? In that case, the journalist is neither a participant nor a witness to a crime. It’s actually far more common for confidential sources to tell journalists about third parties, which Traxler does not address here. What if the confidential source does not hand over any purloined documents or commit any crime in the journalist’s presence? What if the source merely describes the misdeeds of others?

Moreover, what about a Wikileaks style work-around where the journalist has to protect his/her own identity?

What about anonymous posting (like 18th Century pamphleteers?)

Another alternative: Journalists could decide to live with the Branzburg rules and encourage journalists to go to jail and honor those who do so. We could create a Hall of Fame, or we create a special prize and give them each $1 million for their service to the profession and the general public.

[NB: Traxler also relies heavily on the 2005 Judith Miller case. In that instance, her source – Scooter Libby – was committing a crime in the reporter’s presence (whether Miller realized it or not) by outing Valerie Plame, then an active CIA agent. But what if he were not actually committing a crime?]

If there is no legal/constitutional remedy, maybe there is a technological or behavioral remedy. Journalists could change their technology or their techniques. Maybe they need to improve their tradecraft – safer transfers of documents and data, untraceable meetings, disguises, meetings in other countries, go-betweens, etc., etc.

If they insist on criminalizing journalism, then must journalists learn to act like criminals? The mob always esteemed “stand-up guys” who would take their punishment rather than rat out their associates. Is that the model Traxler is pushing us toward?

Why doesn’t the government do a better job of protecting its own whistleblowers? Why do they have to resort to telling journalists?

p. 25:

“The Branzburg Court considered the arguments we consider today, balanced the respective interests of the press and the public in newsgathering and in prosecuting crimes, and held that, so long as the subpoena is issued in good faith and is based on a legitimate need of law enforcement, the government need not make any special showing to obtain evidence of criminal conduct from a reporter in a criminal proceeding. The reporter must appear and give testimony just as every other citizen must.”

Do I detect a certain amount of glee in these opinions when judges have the chance to uphold the power of prosecutors (and, of course, judges) to compel reporters to do things?

p. 26: Here, Traxler does something of an about-face and says it would be fine to give an alternate reading to Branzburg in civil cases. Traxler would grant a qualified reporter’s privilege in civil cases. It’s just the criminal cases where the law enforcement is transcendent over the public’s right to know. Since when does law enforcement trump all other values, goals, priorities?

[Note that the privilege is always qualified; judges always want to be able to put their thumb on the scale of justice. They say: We are not going to give you something once and for all; any time you want to exercise that right, you have to come into court and beg a judge for it. Thanks a lot!]

p. 27: Traxler calls for a “balancing approach” – which translates into arbitrary judicial discretion as far as I can see. When a reporter is about to talk to a source, is he/she really supposed to project ahead and guess correctly about how that “balancing” is going to turn out in his/her case? Fat chance. That is completely unrealistic.

p. 28: Traxler keeps clinging to this obscure clause in Branzburg that offered remedies at law for journalists who are faced with prosecutions intended to “harass” the reporter or carried out “in bad faith.” What is that about? How often does a court decide that a prosecutor has acted in bad faith? That’s a non-issue, a red herring.

p. 29-30: More on the criminal/civil distinction. But: the fact is, some crimes are petty and some civil actions are momentous. I don’t believe it is true that every criminal matter is by definition more important than any civil matter. That strikes me as dogma (or a device for getting to some desired outcome). Some criminal cases, even felonies, involve small potatoes like selling a couple of ounces of marijuana.

[Let’s all keep in mind The BIG PICTURE in the Sterling case: the CIA pissed off one of its agents, and he went rogue, and they want to crush him. Risen is caught between the two antagonists.]

p. 32: Risen also raised a claim to a “common-law reporter’s privilege.” By “common law” he means law that is made by some fashion other than the Constitution and the acts passed by Congress. Usually, this means judge-made law that results from rulings made over time that produce trends. Traxler begins by citing Branzburg saying no common-law privilege existed. But that was as of 1972. Has the common law evolved since then? (which is the nature of common law, no?)

p. 36: Traxler analyzes the common-law argument, based on Rule 501 in the federal rules of evidence, which was passed by Congress, after Branzburg. In comparing a reporter/source case to a psychotherapist/patient case, Traxler writes:

“Applying Rule 501, the Court weighed the competing interests and concluded that the plaintiff’s interest in obtaining evidence of the confidential communications in the ensuing excessive-force action was outweighed by the patient’s private interest in maintaining confidence and trust with his mental health provider and the public’s interest in protecting that privacy in order to “facilitat[e] the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.” Id. at 11. As noted above, the Court also relied, in part, upon the fact that a psychotherapist-patient privilege was one of the nine, enumerated privileges considered when Rule 501 was adopted and had found near unanimous support in state laws as well.”

But Traxler misses the point here. The point is that in both kinds of cases, it is the PUBLIC interest that creates the privilege, not the personal or professional one. The public wants to know that psychotherapy patients as a class have a right to seek help from therapists as a class with confidence that the statements they make in therapy will not end up in court with the names attached. The public also wants to know that when they read a newspaper, there is no information missing because sources in general are afraid to approach reporters in general.

The public wants people in general to feel confident in talking to a doctor, lawyer, or clergymember. Likewise, the public wants people in general to feel confident in talking to a reporter.

Also, note: Branzburg did not forbid a journalist’s privilege as some kind of an evil. It just said that court couldn’t quite find it in the First Amendment. Now, if you are determined not to find one anywhere, you won’t. But if you are looking for one, there are a number of places you might find it. Much depends on one’s predisposition, and there are a lot of judges who are not predisposed to trust reporters.

In Traxler’s case, for example, here’s a passage from p. 37:

“Rule 501 thus leaves the door open for courts to adopt new common-law privileges, and modify existing ones, in appropriate cases. But nothing in Rule 501 or its legislative history authorizes federal courts to ignore existing Supreme Court precedent.”

So, the door is open, but Traxler (and his colleague who joined this majority opinion) does not want to walk through it. To my mind, that does not seem to dispose of this issue once and for all. If lower courts don’t make rulings that allow common-law rulings to accrete, how will the common law ever evolve?

BTW, what if judges had to divulge what goes on in-camera? How would they feel about that? What if they could not guarantee the confidentiality of sidebars or in-camera discussions?

p. 40: Traxler has a message for journalists: Even if we thought we could grant a common law privilege, we wouldn’t [So go fuck yourself!]

“First, unlike in the case of the spousal, attorney-client, and psychotherapist-patient privileges that have been recognized, the reporter-source privilege does not share the same relational privacy interests or ultimate goal. The recognized privileges promote the public’s interest in full and frank communications between persons in special relationships by protecting the confidentiality of their private communications.”

Traxler completely (willfully?) misunderstands the issue.  The party with the claim here is not really Risen as an individual (and not even Sterling). The party whose rights are being evaluated here is THE PUBLIC. The public has a compelling right to know things. If reporters cannot find things out, then the public will not find things out either. It’s that simple.

Traxler’s analogy here is not sound either. He says Risen does not deserve protection because he did not try to hide the information he obtained confidentially but, on the contrary, shouted it from the rooftops by publishing it. Well, what is a journalist supposed to do? Seek the truth and not share it with anyone?

Traxler is writing like a Martian who has never read a newspaper.

Besides, psychotherapists often write up cases and publish their findings in the professional literature but withhold the identity of the patient. That’s a much more apt analogy.

Pgs. 40-41: Speaking of Risen, Traxler writes:

“His primary goal is to protect the identity of the person or persons who communicated with him because their communications violated federal, criminal laws.”

That’s not true, either, and he is imputing a motive to Risen that does not exist – or, at least, has not been proven. As a reporter, Risen had to make a decision about confidentiality in advance of knowing whether such communication violated any federal laws – and indeed, that is a matter of fact for a trial court, not something that Traxler should assume. (Again, the judge is showing his bias in this case; he clearly agrees with the government and has pre-judged the case against Sterling.) Traxler is pro-prosecutor and does not even recognize his own bias. I wonder how many other former prosecutors there are on the federal bench? And I wonder how many ex-journalists? (probably zero)

[Note to self: I am starting to warm up to the idea of a federal Shield Law, if only to take these determinations away from the Traxlers of this world – a conservative with a lifetime appointment can do a lot of damage. I have been reluctant to see journalists go hat in hand to Congress and ask for anything. My fear is that Congress will begin by giving journalists half a loaf — a crummy shield law loaded up with compromises — and later take it away altogether. That would not leave journalists where they are now; it would leave them worse off. Because Congress will have established the precedent of legislating about journalism, even though the First Amendment said it about as clearly as words can say anything: Congress shall make no law abridging the freedom of the press.]

TALK ABOUT COMMON LAW – WHAT ABOUT THE 49 STATES WITH SHIELD LAWS? DOESN’T THAT REGISTER?

If a reporter’s privilege is such a terrible idea and so likely to thwart the pursuit of criminal justice, why tolerate all these state laws? What about “every man’s evidence?” (a term that is not in the Constitution either; it is a legal doctrine, like the right to know)

p. 47: Here, Traxler puts all his cards on the table: Even if there were a qualified reporter’s privilege, we would still not extend it to Risen. He would not even meet the civil standard – the so-called “Larouche test.”

Under that standard, a reporter can be compelled to testify only if three conditions are met:

1. The info is relevant to the case at hand (duh!)

2. the info cannot be gotten by any other means (all prosecutors will affirm this)

3. There is a compelling interest in the info. (all prosecutors will affirm this, too)

In this case, Traxler (a former prosecutor) happens to side with . . . the prosecutors!

p. 50:

“Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information.”

Note that Traxler refers to “the crime” in one sentence and then catches himself two sentences later and writes (properly) of “the alleged crime.” Worth remembering: Nothing has been proven. Sterling has not been found guilty by a jury of anything, and he enjoys the presumption of innocence.

Besides: maybe it wasn’t Sterling. Or maybe it wasn’t only Sterling. Traxler accepts the indictment as if all matters of fact have been proven.

p. 52:

“During these proceedings, Sterling has often represented that he intends to point his finger at these third parties as the source of the leak. The district court’s ruling, however, would require the government to compel the testimony of every other possible source, sources who could do little more than assert their own privilege or offer a simple denial of guilt, while allowing Risen, the only person who can identify the perpetrator or perpetrators, to protect his sources from the criminal consequences of their behavior.”

Huh?

Why should the journalist have less protection than those possible miscreants? Shouldn’t he have at least as much – given that the journalist is not an instigator of any criminal activity and that he is serving a compelling public interest?

This ruling is upside-down.

p. 57: Traxler takes up the argument that there is a compelling interest in Risen’s testimony. This is rich: one of the reasons he cites is the “obvious” claim that national security is important. He cites Haig v. Agee to state that “no governmental interest is more compelling” – in other words, national security is tops or at least tied for first, compared to every other governmental interest. But that’s just his opinion. It is not a natural fact or a fact that is even self-evident.

Then, he has the chutzpah to argue that the national security interest extends to the methods of gathering and keeping secrets, including “the appearance of confidentiality” – which is exactly what reporters need in order to carry out their constitutionally protected role.

p. 58: Traxler betrays a disturbing willingness to go on a fishing expedition to find out all Risen’s sources.

 

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On to the DISSENT

p. 86: Judge Roger Gregory (the first black judge on that circuit, nominated by Bill Clinton; he is also a former litigator – and therefore someone who is not automatically inclined to believe or support the government) wrote the DISSENT, for himself. He begins by celebrating press freedom and noting its central role in self-govt.

p. 90: Gregory indicates that he actually read the pro-media affidavits, whereas there is no literary evidence in Traxler’s opinion that he is conversant with that other point of view. It appears that Traxler read only the prosecutor’s briefs.

p. 91: Gregory singles out the affidavit from the Washington Post’s veteran national security investigative reporter Dana Priest — about Gitmo, Abu Gharib, secret prisons, Walter Reed.

QUESTION: Which of these revelations would any American want to put back in the bottle? They were all secret originally (maybe not Walter Reed), and they all had to be pried loose using confidential sources. Would we as a society be better off not knowing? Does Judge Traxler really prefer, himself, to learn only what the government wants him to know?

p. 98: Gregory’s bottom line:

 I, too, would recognize a qualified reporter’s privilege in the criminal context, and evaluate the privilege using the three-part test enunciated in LaRouche as an “aid” to help “balance the interests involved.” 780 F.2d at 1139. I would add a caveat to this general rule, however; in cases involving questions of national security, if the three-part LaRouche test is satisfied in favor of the reporter’s privilege, I would require consideration of two additional factors: the harm caused by the public dissemination of the information, and the newsworthiness of the information conveyed.

p. 108: Gregory implies that the CIA is not trying to cover up vital national security secrets but is simply trying to cover its ass after a botched operation.

“This information is not extraneous. Quite the opposite, it portends to inform the reader of a blundered American intelligence mission in Iran.”

Gregory says Risen’s disclosures are definitely newsworthy. The final test is to balance that newsworthiness against the harm of disclosure.

Which raises the question: where’s the harm?

Gregory:

“. . .the Government has not clearly articulated the nature, extent, and severity of the harm resulting from the leak.”

This is classic. The government failed to do this in the Pentagon Papers case, too and lost as result. In this case, it must be asked: WHERE’S THE HARM? The stuff in Risen’s book came out years ago already, and what part of the sky fell? What’s the body count? As usual, there’s nothing but some egg on some faces.

p. 112: In his big rhetorical wind-up, Gregory laments the majority ruling written by Traxler:

 I find it sad that the majority departs from Justice Powell’s Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for reporters. . .

Under the majority’s articulation of the reporter’s privilege. . . a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial. The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society. The First Amendment was designed to counteract the very result the majority reaches today.

Amen.

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So, that’s where things stand. By my reading, as a citizen, I would say that while this ruling was a setback, it was just another battle in a long war. Branzburg was a close call back in 1972, and, while I believe the court got it wrong, my guess is that the Branzburg ruling is not destined to stand much longer. The surge of state-level shield laws, the closeness of these cases in federal courts, and the rightness of the journalist’s privilege all give me reason to hope that neither James Risen nor any other journalist ever has to go to jail for their efforts to inform the American people about the doings of their own government. We, the people, created that government (including the judiciary), and we should be able to make it do what we want.

 “Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it.”

 

 

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Filed under blogging, broadcasting, First Amendment, Journalism, journalism history, New York Times, Politics, Supreme Court, Wikileaks

Harvard prof backs Wiki-leaker

By Christopher B. Daly 

Not to be missed: Charlie Savage has a story in today’s NYTimes about the defense resting its case in the court-martial of Pfc. Bradley Manning for his alleged role in the Wikileaks disclosures. The star of the show was Yochai Benkler, a Harvard Law School professor who has been a leading figure in Harvard’s indispensable Berkman Center for Internet and Society.

On a busy news day, the Manning story was somewhat buried in the Times, but it is worth reading — including the link to Benkler’s scholarly paper on Wikileaks.

 

 

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Filed under leaks, Wikileaks

It’s raining leaks!

By Christopher B. Daly 

imgres3Today’s news brings a very curious twist on the theme of national-security leaks. This time, the suspected leaker is not a low-level functionary like Bradley Manning or Edward Snowden but a high-ranking military official — in fact, the former No. 2 in the entire military command structure. According to a report first broken by NBC News, retired Marine Gen. James E. “Hoss” Cartwright is under investigation in connection with the leak of classified information about American cyberattacks against Iran, intended to disable or slow down Iran’s program to build a nuclear weapon. (The coverage in today’s NYTimes is rather circumspect, which makes sense, considering that the Times was the recipient of the leak. The paper quotes NYT executive editor Jill Abramson saying she doesn’t discuss such things.)

I wonder if Cartwright’s rank will make any difference here. After all, he’s not some some “29-year-old hacker,” — as President Obama pooh-poohed Snowden on Thursday, while adroitly trying to keep the Snowden/NSA leak from screwing up great-power relations with China and Russia. (Funny thing: at other times, Obama is quite willing to characterize Snowden as a threat to our very existence. Also, an update: Snowden turned 30 last week.)

Back to Cartwright. Far from being a hacker, Cartwright, who was named vice chairman of the Joint Chiefs by President28stuxnet1-img-articleInline Bush and who served under Obama as well, was at the epicenter of the military/national security power structure. I wonder how the top brass and the national-security establishment feel about leaks now, when one apparently came from one of their own. Where’s the outrage? Will we be seeing Sens. McCain and Graham or former veep Cheney going on Sunday TV talk shows demanding his head?

We might also ask: Why would Hoss Cartwright do such a thing? He’s not commenting, but we can just imagine. Maybe he wanted to see the U.S. get credit for “doing something” about the Iranian threat. Maybe he wanted to let Americans know that we had the technical means to mess up their weapons program without having to attack or invade Iran by conventional means. Maybe he was ordered to make the leak by someone who out-ranked him (perhaps the Chair of the Joint Chiefs, or the National Security Adviser, or the Secretary of Defense, or the President himself?)

The Washington Post, after pointing out that the cyberattack on Iran included a computer virus named Stuxnet and was part of a broader program code-named “Olympic Games,” adds this tantalizing hint:

Cartwright, who helped launch that campaign under President Bush and pushed for its escalation under Obama. . .

Maybe Cartwright thought his favored program was threatened in some way by someone else in the national security apparatus.

As I have long maintained, the reaction to leaking is very much in the eye of the beholder. If the leaker is powerful enough, the act of leaking is not a crime but just politics by another means.

For the record: As far as we know, Cartwright would be the eighth target of an Espionage Act investigation undertaken in the Obama administration’s record-breaking campaign to punish leakers.

Speaking of cyberattacks, U.S. officials seems to be scrambling to find a path through this 28cyber1-img-popuppolicy thicket. On the one hand, Joint Chiefs Chairman Martin Dempsey is hurrying to write new rules for warfare in cyberspace, according to another article in today’s NYTimes. (Don’t hold your breath waiting to participate in this process yourself: any such rules are classified. So there!) Here’s the takeaway:

[Dempsey] said that, globally, new regulations were needed to govern actions by the world community in cyberspace. He said that the Chinese did not believe that hacking American systems violated any rules, since no rules existed.

And, finally, for an example of what’s at stake in terms of commerce, today’s Boston Globe has an eye-popping story about how the Chinese allegedly steal commercial secrets. If you thought they just stole plans for making plastic tschotschkes, think again. This one involved the design for wind turbines, which the Chinese had the nerve to sell back to us!

It’s enough to make the head spin. How am I supposed to keep up with the Whitey Bulger trial, the Hernandez case, or the trade of both Paul Pierce and Kevin Garnett to the Brooklyn Nets????

p.s. For a fun and puzzling exercise in mind-games, go to the NYT homepage and enter the term “stuxnet” in the search box. If you can figure out the results, please explain in a comment below. 

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Filed under Journalism, journalism history, leaks, media, New York Times, Obama, Politics, President Obama, Wikileaks

More on Obama’s war on journalism

By Christopher B. Daly

Below is an intelligent discussion of the Obama administration’s over-reaching to investigate “leaks” to journalists. It inolves UChicago law professor Eric Posner and Slate journalist Emily Bazelon.

Here is the original piece on Slate, which contains all the links but which I found nearly unreadable at this length on the Slate site.

As a service to my readers, I have re-formatted it below. I removed all the jumping, blinking ads, and I got rid of the reader-hostile san-serif typeface that Slate uses (in an apparent effort to appear “modern”). Instead, it is formatted in Times New Roman 16.

 

Secrets and Scoops

Emily Bazelon and Eric Posner debate press freedom, national security, and the government’s grab of the AP’s phone records.

By Emily Bazelon and Eric Posner

Posted Friday, May 17, 2013, at 1:52 PM

In the wake of the story this week that the Justice Department scooped up two months’ worth of the phone records of reporters and editors at the Associated Press, University of Chicago law professor and Slate contributor Eric Posner and Slate senior editor Emily Bazelon have been arguing over whether this is an overreach by the Department of Justice and an intrusion on the newsgathering function of the press (Emily), or an entirely justified effort to find and prosecute a scurrilous government leaker who imperiled the country’s counterterrorism operation in Yemen (Eric). Here’s an edited version of their exchange:

Emily: Like a lot of journalists, I am dismayed and indignant about the Justice Department’s commandeering of two months of AP phone records. To me, this is part of a troubling development: The Obama administration has pursued more leak prosecutions—six—more aggressively than any administration in history. For comparison’s sake, as I mentioned earlier this week, from 1917 until 1985, there was one successful federal leak prosecution. Our democracy was the better for the freedom the press has traditionally had to uncover government secrets (see Watergate). In the case of the AP, the particular tactics the government used are worrisome for their breadth—lots of phone lines in different offices over a long period of time—and for the lack of judicial oversight. Instead of serving the AP with a subpoena, which would have alerted the news organization and given it a chance to fight the order in court, DoJ apparently sent the subpoena to the phone companies. The Justice Department decided on its own not to follow its usual policy of giving the press notice of this kind of intrusion, because it apparently decided that giving notice would threaten the integrity of the investigation. It’s hard to see why that would be true of phone records collected after the fact, as New Yorker general counsel Lynn Oberlander points out—and her larger point is that this should be a call for the courts, not prosecutors, to make.

Journalists don’t really have a legal leg to stand on to protect their sources in the federal government, however—especially when any claim can be made that national security is at stake. The 1917 Espionage Act was written to fight sedition and prevent government officials from compromising military security, and has lately become a tool for going after people who leak classified information. My concern is that once a leak investigation is underway, invoking national security almost always trumps the argument that the public benefits from knowing about the internal workings of government. The Justice Department says “trust us” and “sensitive investigation” and that’s that. Why exactly should we follow along like lemmings?

But that’s not how you see it, I think. To tee you up: Did the government overreach in the AP probe? Or is this the kind of investigative tactic that gets the press and a few civil libertarians up in arms but seems perfectly sensible to everyone else?

Eric: It makes perfect sense to me—I can’t speak for everyone else, whose opinions rarely coincide with mine. The May 2012 AP story that’s at issue disclosed that the CIA thwarted a terrorist plot to plant a bomb on a plane flying to the United States from Yemen. As Orin Kerr explains, anyone who read the story could infer that U.S. or foreign agents had penetrated al-Qaida’s Yemen affiliate. Even if AP delayed publication until after completion of the operation, the information disclosed may have put the lives of agents in danger or disclosed intelligence methods or simply made foreign intelligence agencies yet again doubt the U.S. government’s ability to keep secrets. The story identifies its sources as U.S. government officials, who clearly violated federal secrecy law. The Justice Department acted rightly to investigate these violations. And because it knew that U.S. government officials communicated with AP journalists, it acted rightly to subpoena phone records that might disclose phone numbers of U.S. officials, who could then be questioned.

If the Department of Justice were investigating Wal-Mart, JP Morgan, or Google for violations of antitrust or securities law, the reaction would be a big yawn. Because it is investigating journalists, we are supposed to feel outraged. But why, exactly? I’m not a journalist myself, Emily, so maybe you can explain the unanimous expressions of outrage from the media and its supporters. I can see a worry about whistleblowers being deterred, but no one thinks that this case involves whistleblowers—by all accounts, the operation was a success and not occasion for a cover-up.

Emily: Journalists think we are special when it comes to revealing sources because protecting them gets us stories that the public benefits from knowing. Maybe the AP’s sources for this story weren’t whistleblowers. Since the government won’t tell us what triggered the subpoena, we don’t know. But yes, I do think that blanket orders for records like this one could deter whistleblowers. Consider the case of Thomas Drake, prosecuted for revealing information about waste and mismanagement at the National Security Agency that led to a prize-winningBaltimore Sun series. And consider the enormous number of classified documents and the probability that some of them are kept secret to avoid embarrassment rather than a breach of security. If you were a government employee with access to a secret like that, and you heard about Drake and the AP, wouldn’t you keep quiet? In assessing the threat to national security, it’s also important to note that the AP held back publication for a week—until the day before a government press conference about the foiled bomb plot. But, conceded, that doesn’t mean the leak itself didn’t pose a great risk. Why shouldn’t the government have to make that showing to a judge? That seems like a speed bump, not a red light. And it would address the “trust us” concern. Maybe even reassure whistleblowers, too.

Eric: You’re right to observe that government officials do not always have good incentives. I’d say they have mixed motives: (1) to protect the country and (2) to protect their hides when they fail at (1). But journalists harbor mixed motives as well. They want to disclose bad behavior among government officials, but they also want attention, Pulitzers, hits, readers—and nothing gets attention like stories about secret counterterrorism operations. The New York Times acted disgracefully by exposing the secret government program to trace money transfers among al-Qaida terrorists in a 2006 article written by Eric Lichtblau and James Risen. They did not expose government malfeasance; they exposed an intelligence operation that al-Qaida would henceforth know to evade. See Jack Goldsmith’s devastating evisceration of Lichtblau’s and his editors’ lame, self-serving rationalizations of their decisions to compromise this valuable intelligence program and others like it. I agree that courts can play a useful role in arbitrating disputes between the government and the press. But I am not convinced that they would have played a useful role here. The government had no legal obligation to seek approval from the courts, and even its harshest critics agree that if it had, a judge would have rubber-stamped the government’s request under the prevailing legal standard. So what exactly would have been accomplished? The problem is that judges are human beings like the rest of us; when confronted with national security justifications from government lawyers that they cannot directly test or verify, they have no choice but to defer to them, while the procedure would slow down the investigation. If it was a question of someone going to jail, courts would be less deferential, but the harm you describe—that potential whistleblowers in future potential cases may be deterred from talking to journalists—will have to yield to the government’s reasonable request for information so that it can conduct a criminal investigation.

Emily: OK, we each have our example of excess: For me it’s the case of Thomas Drake, for you it’s the Lichtblau and Risen series. I see runaway prosecutors and you see a runaway press. I disagree that judges need be a rubber stamp. I’m sure you’re right that they approve most subpoena requests, and maybe that’s OK, because the government’s requests pass the smell test. But two examples to the contrary that give me comfort: In 2008, in the prosecution of another accused leaker, former CIA agent Jeffrey Sterling, New York Times reporter James Risen was subpoenaed about his sources for his book on the history of the CIA during the Bush administration. In 2011, Judge Leonie Brinkema ruled that Risen did not have to testify against Sterling. “A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” she wrote. There’s an example of an informed judge standing up to the government’s supposedly sacred invocation of national security. Here’s another older one of a judge standing up for the press: In 1973, Judge Charles Richey denied subpoenas that sought the identity of Deep Throat, the Washington Post’s Watergate source. “This court cannot blind itself to the possible chilling effect the enforcement of these subpoenas would have on the flow of information to the press and thus to the public,” he said in March 1973, in response to demands for documents from the Post and the NYT by Nixon’s re-election committee.

Brinkema’s decision is on appeal to the U.S. Court of Appeals for the Fourth Circuit—a year after arguments, that court has yet to hand down a ruling. Needless to say, I’m rooting for Risen. Brinkema said that going after a reporter’s sources should be a last resort, and that the government had other options in this case it hadn’t pursued. The deputy attorney generalclaims that’s not true of the AP probe. But again, why should we trust him, instead of a neutral arbitrator, to make this call?

The White House has tried to soothe the press by promising to reintroduce a federal shield law for journalists. The bill lapsed after the WikiLeaks document dump in 2010. Do you think a statute like this one is a good idea? Would it change anything?

Eric: You mentioned the Sterling case, where Judge Brinkema quashed subpoenas issued by the government to Risen, to force him to testify as to the identity of his source (allegedly Sterling) for a report about a U.S. intelligence operation against Iran. Judge Brinkema ruled against the government because she believed that the Justice Department did not need Risen’s testimony to win its case—which suggests that Risen would have been compelled to testify if the government needed his testimony. The funny thing about this opinion is if you take it literally, the qualified First Amendment privilege that prevails in Brinkema’s court would not actually protect any whistleblower, since it applies only if the government can convict the whistleblower without the reporter’s testimony. I doubt that this is in fact the case, suggesting the opinion is poorly reasoned—for why would the government try to appeal the opinion if it can convict Sterling without Risen’s testimony? So I accept your view that a judge need not be a rubber stamp. But the pertinent question is whether we can trust judges to adjudicate disputes like this competently—in such a way that balances the government’s interest in protecting leaks and the public’s right to know. On the basis of this harebrained opinion, I would say no. You also argued in your Slate piece that the Obama administration has launched a “war on journalism” because of the unprecedented number of leak prosecutions—six. According to this helpful article by Charlie Savage, only three prosecutions had ever taken place before Obama assumed office. Savage goes on to suggest that one reason for the increase in prosecutions is simply that it is easier today for the government to catch leakers by following electronic trails than in the analog past. I’d like to make two additional points. First, compared with the astonishing quantity of revelations in books like Risen’s and Lichtblau’s, the actual number of prosecutions is truly minuscule. A government official thinking about blowing the whistle should know that the risk of detection and prosecution is close to zero, even in Obama’s reign of journalistic terror. You said earlier “invoking national security almost always trumps the argument that the public benefits from knowing about the internal workings of government”—but is there anything about recent counterterrorism operations that the public doesn’t know? When these operations succeed, someone leaks classified information so he can gain credit for himself or his boss. When the operations fail, someone leaks classified information so she can place the blame on a rival.

Second, the government faces enormous constraints when it prosecutes leaks, and these constraints overshadow the puny legal considerations, like the vagueness of the Espionage Act, which you rightly note. A recent book by Gabriel Schoenfeld, which recounts the history of the press’ involvement in the disclosure of classified information, discusses many of these. Governments often refrain from prosecuting because they fear that doing so will draw attention to the disclosure of secrets, the seriousness of which enemies might otherwise overlook. Governments often face a “graymail” threat from leakers, journalists, and lawyers, who hint that additional classified information may be disclosed if a trial is held, or that it must be disclosed so that the trial is fair. Then there is the sheer difficulty of proving all the elements of a criminal case, and confronting a jury who may sympathize with whistleblowers. Finally, the government needs the press on its side, and as we have seen from the last few days, the press is perfectly willing to retaliate against the government for what it regards as unwarranted investigations and prosecutions—by, say, whipping up three unrelated penny ante scandals into a toxic brew suggesting something like Rome under Caligula.

So rather than accept the press’ description of itself as David fighting the government’s Goliath, I see something close to a battle among equals, where the press has done rather well. Has a journalist ever been held criminally liable for his or her complicity in the intentional disclosure of classified information, a plain violation of criminal law? I don’t think so. That says a lot about the true balance of power. In answer to your questions about the proposed shield law: A number of laws have been proposed that would create a reporter’s privilege. The details vary, but the major idea is to protect journalists with a balancing test so that they will not be compelled to disclose sources when the public interest in disclosure “outweighs” the public interest in concealment. So maybe under this standard a court would protect sources who disclose Watergate but not sources who disclose the identities of agents in an undercover counterterrorism operation. There is a vast amount of space between these two extremes; I have no particular confidence that courts would be able to engage in the appropriate balancing for, say, a story that reveals the identities of agents in a counterterrorism operation who might (or might not) have broken some laws. Nor does the Obama administration: The version of the law it supports requires judges to defer to the government when it claims that national security is at issue. Beyond that, I don’t see the necessity of such a law, given the arguments I’ve made about the magnitude of the political constraints on the prosecution of leakers, and on investigations of journalists. Those constraints ensure that the government will investigate leaks, and bring prosecutions, only in extreme cases. As for the Drake case, your Exhibit A for abusive prosecution of a whistleblower, it exploded in the government’s face. “If they had it to over again, I suspect the department likely would not bring the Drake case,” said a former DOJ spokesman.

Emily: Yes, the detonation of the Drake case is the only good thing about it! But that took years. I’m mulling your characterization of the press and the government as near equals. We don’t see ourselves that way, but maybe that’s because the underdog complex serves our interests. It’s also in our DNA to worry about sources drying up and to prize revelation over secret keeping. I still think, though, that the power of prosecution is the all-mighty one. The press helps to keep it in check, and so do judges. I score lots of points for you in this debate, but I’m hanging on to my faith in the importance of both.

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Filed under First Amendment, Journalism, Obama, Politics, Wikileaks

A trial about secrets, tried in secret

By Christopher B. Daly 

No getting around it: the Obama administration is badly abusing its power in its handling of the “Wikileaks” case against Army Pfc. Bradley Manning. Forget about Manning for the moment. The issues involved in his case are of great interest to the general public. We have a stake in whether he receives a fair, public trial. If his case were in a civilian court instead of a military court martial, none of the shenanigans outlined in David Carr’s column today in the New York Times would be tolerated — or, at least, they would be corrected on appeal.

The military’s handling of this case is embarrassing our country in the eyes of the world, and it insulting to the citizens of the United States. I don’t know if he is guilty or not; I don’t know if the military is railroading him or not. But I know for sure that it appears as though the military is railroading the guy, and that is bad enough.

Just a sample from today’s Carr column:

imgres3Finally, at the end of last month, in response to numerous Freedom of Information requests from news media organizations, the court agreed to release 84 of the roughly 400 documents filed in the case, suggesting it was finally unbuttoning the uniform a bit to make room for some public scrutiny.

Then again, the released documents contained redactions that are mystifying at best and at times almost comic. One of the redacted details was the name of the judge, who sat in open court for months.

A disgrace.

Update: the AEJMC, the country’s biggest group of journalism scholars and educators, just issued this statement on prosecuting leaks.

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Filed under Journalism, media, Politics, President Obama, Wikileaks

On national security leaks

By Christopher B. Daly

Here we go again.

According to today’s Times, members of Congress (especially Republicans?) are outraged at the leaks on national security matters that they believe the administration is committing. Not only that, they are shocked (shocked, I tell ya) that such leaks might be carried out to advance the president’s political fortunes. Reading between the lines, it appears that they are upset that Obama officials go off the record and whisper disclosures to the Times and other news media informing the media and thus, the public as well, of their successes in the secret drone campaign and in the secret cyberwarfare we are apparently waging against Iran.

Imagine that: Could it really be that the Obama administration has invented a tactic that no other president (such as his immediate predecessor) ever thought of? Hmmm… Ever since the passage of the Espionage Act in 1917 and especially since the rise of the National Security state after WWII, this issue has been a chronic point of friction at the intersection of law, military operations, spying, and politics.

In all these situations, I believe the first question that any honest citizen should ask is this: Where is the harm?

Who, exactly, is harmed by knowing what the government is doing in our name around the world? There is no indication that any operational details have been compromised. (Surely, the remnants of al Qaeda know that we are gunning for them; just as surely, the Iranians know that we are trying to mess up the computers that run their nuclear program. So what?)

Look at it this way: with the leaks, the American people know enough to debate whether these are good ideas or not (and whether we want to re-hire the guy who is ordering them).

Without the leaks, we would be ignorant.

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Filed under Journalism, journalism history, media, New York Times, Wikileaks