Tag Archives: Leaks

Leaks investigation

By Christopher B. Daly

The Times editors probably should have slapped an “Analysis” label on this piece (which it carries online, but not in today’s print version) or put in the Sunday Review section. In any case, Charlie Savage has an intelligent analysis of why “leaks” investigations so often come to nought.

He makes a key legal point here:

Many people are surprised to learn that there is no law against disclosing classified information, in and of itself. The classification system was established for the executive branch by presidential order, not by statute, to control access to information and how it must be handled. While officials who break those rules may be admonished or fired, the system covers far more information than it is a crime to leak.

Instead, leak prosecutions rely on a 1917 espionage statute whose principal provision makes it a crime to disclose, to persons not authorized to receive it, national defense information with knowledge that its dissemination could harm the United States or help a foreign power.

And he goes on to make the point that prosecutors have a difficult showing the harm that flows from disclosures of classified information. It is almost never the case that a news media participant in a leak will divulge real, active military secrets. Instead, the practice of leaking is usually someone’s way of trying to win or shape a policy debate. It is the pursuit of politics by other means.

 

Leave a comment

Filed under First Amendment, Journalism, journalism history, leaks, New York Times, President Obama

Update on leaks

At his press conference later in the day (June 8), Obama had this comment on the issue:

“The notion that my White House would purposely release classified national security information is offensive,” he said. “It’s wrong. And people, I think, need to have a better sense of how I approach this office.”

Without confirming the accuracy of the information — which was revealed in two articles in The New York Times last week — Mr. Obama said the such leaks deal with the safety of the American people, its military and its allies.

“We don’t play with that,” he said, vowing to investigate the leaks. “We consistently, whenever there is classified information that is put out into the public, we try to find out where that came from.”

 

Of course, what else would he (or any president) say?

Leave a comment

Filed under Journalism, leaks, Politics, President Obama

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.

Leave a comment

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

Obama and Secrets

By Chris Daly 

As is becoming obvious, the Obama administration is developing a disappointment on the promises made by candidate Obama to run an open government. Instead of transparency, we are getting business as usual — or, in some areas, worse than usual.

The New York Times’ David Carr has a helpful update today on the government’s use of the Espionage Act under Obama. More often than not, federal prosecutions are brought against leakers who divulge secrets to the press. Rarely do we see prosecutions of real spies, the kind who steal or buy classified information on behalf of some hostile foreign government that then uses that information to defeat us militarily. Now, that kind of thing would justify the existence and the use of the Espionage Act. But no. The law is usually used to punish the people who are journalists’ sources. Rather than go after the reporters directly, the government (usually) settles for punishing the leaker, who is usually a government employee.

 

The Espionage Act, as I detail in my new book (which should in bookstores on Friday), Covering America, was passed in 1917 by a Congress that was unsure whether the American people would support a war that the president himself had said was unnecessary until right before the U.S. plunged into the fighting in Europe. Among those prosecuted under the Espionage Act (or its companion law, the Sedition Act of 1918) was the socialist leader Eugene Debs, who was imprisoned for giving a speech.

Carr’s piece, as I mentioned, is valuable, but it raises one beef I have with the Times’ coverage in general – that is, the paper’s use of links. In today’s piece, there are plenty of links, but they are almost all internal; they link to earlier Times stories or to the Times Topics database. There is nothing wrong with those, but the paper consistently misses chances to link to historical materials. There is no reason  the Times couldn’t link to the text of the Espionage Act, for instance. Actually, there may be a reason: these links are not always easy to find. But they would give the Times‘ reporting a lot more authority.

 

 

 

 

 

 

 

 

 

Leave a comment

Filed under First Amendment, history, Journalism, journalism history, leaks, New York Times, President Obama

Protecting journalists’ sources

By Chris Daly 

It’s good to see the news media agreeing to close ranks on something. In the latest case, it is an attempt by the U.S. Justice Department to force a prominent, respected journalist to reveal the identity of his source. The government wants that identity revealed so that it can go ahead and punish the “leaker.”

According to a story in today’s NYTimes by Charlie Savage, just about every major U.S. news organization joined in urging a federal appeals court to “shield” the journalist, the indispensable James Risen, a Times reporter on national security issues who also wrote a book in 2006 called State of War. In his book, Risen, using confidential sources, embarrassed the CIA by detailing the agency’s failed attempts to sabotage the Iranian nuclear-weapons program. To my mind, that seems like valuable information that a free people ought to have access to, so that we can debate the wisdom of what it being done in other countries in our name. Without reporting like that done by Risen, we would all just be kept in the dark.

The story in the Times has plenty of valuable links to the original documents, including the media’s amicus brief. Here is a link to the key Supreme Court ruling on the issue (and be sure to read down to Justice Douglas’s stirring dissent, which gets it right).

For a fuller understanding of the historical backdrop of the case, here is an excerpt from my new book (due out in about a week) that details the U.S. Supreme Court’s handling of the landmark Branzburg case in 1972. Branzburg v. Hayes was the case that has shaped the legal, political, and constitutional debate over whether journalists should have a “shield law” to allow them to protect confidential sources.

From Covering America © Christopher B. Daly:

(pardon the formatting issues)

In the spring of 1968, [New York Times reporter Earl] Caldwell traveled to Memphis to cover the strike being waged by the city’s sanitation workers, supported by the Reverend Martin Luther

King Jr. Caldwell was in the Lorraine Motel on April 4 when a loud shot rang out.

The only journalist present at the scene, Caldwell immediately called the Times

newsroom and began dictating details of the King assassination, which the editors

spread across the top of page one. According to Caldwell, King had spent

most of the day in his room, then emerged around 6 p.m. onto the balcony, wearing

a black suit and a white shirt. Caldwell’s report continued:

Dr. King, an open-faced genial man, leaned over a green iron railing to

chat with an associate. . . .

The Rev. Ralph W. Abernathy, perhaps Dr. King’s closest friend, was

just about to come out of the motel room when the sudden loud noise

burst out.

Dr. King toppled to the concrete second-floor walkway. Blood

gushed from the right jaw and neck area. His necktie had been ripped

off by the blast.

 

King’s murder touched off a fresh round of violence in cities across America, and

Caldwell returned to the “riot beat” for much of the summer (fig. 12.5).

That fall, Caldwell went to San Francisco to become a West Coast correspondent

for the Times. Through his contacts among the few black reporters in the Bay

Area, he gained access to Black Power advocate Eldridge Cleaver, and by the end

of 1968, Caldwell was the most knowledgeable reporter in the mainstream press

about the emerging Black Panther Party, based across the bay in Oakland. As it

turned out, the Panthers were shrewd enough about the media to want coverage

in the New York Times, and they gave Caldwell access, as well as what reporters

call “color” (atmospheric details), on-the-record interviews, just about anything

he might want. His stories established that the Panthers were heavily armed and

were talking about violent revolution. Caldwell worried about how Cleaver and

the other Panthers would react to his reporting, but he didn’t need to. “The Panthers

wanted people to know what they were doing. They wanted me to write in

the paper about them having guns.”24 His reporting also attracted the attention of

the FBI, which was waging a nationwide campaign of surveillance and intimidation

against radical groups both black and white. That attention would develop

into one of the landmark Supreme Court rulings affecting reporters and their

ability to protect confidential sources.

The legal case began when FBI agents paid a visit to Caldwell and told him

that they wanted a lot more information about the Panthers. Caldwell told the

agents that everything he knew was right there in the newspaper, including the

fact that the Panthers were armed and that they were threatening to kill the president.

Even so, the government wanted more from Caldwell. He refused to talk,

however, believing that any appearance in secret before a grand jury would make

him look like an informant and dry up his sources. The agents were not satisfied,

and the Bureau turned up the pressure, warning him that he would be forced to

testify in court—a step that would not only destroy his relationship with the Black

Panthers but jeopardize his value as a reporter on any other beat as well. Facing

a possible court appearance, Caldwell destroyed most of his Panther files, but

there was still the matter of his testimony. In February 1970 he was served with

a subpoena ordering him to appear before a federal grand jury investigating the

Black Panthers. The subpoena did not name the Times, but the newspaper hired a

prestigious San Francisco law firm to represent Caldwell. Their advice: cooperate.

Hearing that, Caldwell tapped his network of black journalists, who steered him

toward a Stanford law professor, Anthony Amsterdam, a brilliant defense lawyer,

who agreed with Caldwell’s decision not to testify and offered to represent him pro

bono.25

After he continued to refuse to testify about his news sources, Caldwell was

found in contempt of court and ordered to jail, but he was allowed to remain free

while his case went to the Ninth U.S. Circuit Court of Appeals. The higher court

sided with Caldwell, but then the federal government appealed that ruling. Enroute

to the U.S. Supreme Court, Caldwell’s case was combined with two others

and filed under the heading Branzburg v. Hayes. Paul Branzburg was a reporter

for the Louisville Courier-Journal who had been an eyewitness to a drug crime.

(Thus he was not, strictly speaking, protecting a confidential source.) Paul Pappas

was a television news photographer working for a TV station in New Bedford,

Massachusetts, who had gone to nearby Providence to cover the local Black Panthers

chapter and spent several hours inside their headquarters. Like Caldwell,

Branzburg and Pappas were both journalists who had been ordered to testify

before grand juries; like Caldwell, they had refused on professional grounds.

In all three cases, the issue was not a classic instance of protecting the identity

of a confidential source. It was more a matter of preserving the journalists’ access

to sources, which would be destroyed if the people who were being reported on

suspected that the reporters had cooperated with law enforcement. All three cases

involved a constitutional claim that the First Amendment includes not only the

right to publish (and withhold) information freely but also the right to gather news

freely. Recognizing the stakes, news executives threw their institutional weight

behind Caldwell and the other reporters. Supporting briefs were filed by the Washington

Post Company, the Chicago Tribune Company, the American Newspaper

Publishers Association, the American Society of Newspaper Editors, the American

Newspaper Guild, the Radio and Television News Directors Association, the

Press Photographers Association, and the ACLU—along with affidavits from such

respected journalists as Anthony Lukas, Walter Cronkite, and Marvin Kalb.

In a decision handed down on June 29, 1972, the Supreme Court narrowly

ruled against the journalists.26 Writing for the 5–4 majority, Justice Byron White

held that the First Amendment had to be balanced against the Fifth Amendment,

which guarantees criminal defendants the right to have their cases presented to

a grand jury before indictment. In his opinion White invoked the ancient legal

doctrine that “the public . . . has a right to every man’s evidence.” The only exceptions,

he said, are those instances in which the states have adopted laws specifically

granting certain categories of people a legal privilege against having to testify.

Such a “testimonial privilege” might protect a wife from testifying about her

husband, a doctor about a patient, or a priest about a penitent. In such cases,

legislatures determined that some other social good was worth the cost of allowing

the privileged category of people to avoid the grand jury. But, White said,

the Court could not take seriously the idea “that it is better to write about crime

than to do something about it.” If reporters know things that prosecutors want to

find out, they must tell what they know. Besides, the justice wrote, if the Court

created a special privilege for journalists, it would soon have to define who is

(and is not) a journalist—a task that raised the specter of government licensing

of journalists, which would be far more murky than determining who is a doctor

or a priest. “Almost any author may quite accurately assert that he is contributing

to the flow of information to the public,” White wrote, warning that just about

anybody could claim to be a journalist of one variety or another. Finally, White

observed that the U.S. attorney general had written a set of guidelines governing

the issuance of subpoenas to reporters, which the high court thought ought to

suffice for the bulk of cases.27 The majority opinion also included an invitation

to legislatures to create a “testimonial privilege” for reporters, and many state

legislatures went ahead and passed versions of what are known as “shield laws.”

In a brief concurring opinion, Justice Lewis Powell, though voting with the

majority, very nearly came down on the other side. He warned prosecutors that

“no harassment of newsmen will be tolerated,” and he wrote that if reporters feel

they are being abused by overzealous prosecutors seeking the names of confidential

sources, then those reporters should go to court and seek a protective order. “The

asserted claim to privilege should be judged on its facts by the striking of a proper

balance between freedom of the press and the obligation of all citizens to give relevant

testimony with respect to criminal conduct,” Powell wrote, saying it is up to the

courts to handle such claims on a case-by-case basis. Nevertheless, his joining with

the majority had the effect of denying journalists’ claims to a constitutional privilege.

Among the dissenters, Justice William O. Douglas wrote one of the most eloquent

statements of press freedom in history. Having staked out a position as a

First Amendment fundamentalist, Douglas saw the Caldwell and related cases

in clear-cut terms. “My belief is that all of the ‘balancing’ was done by those who

wrote the Bill of Rights,” he said, adding that “by casting the First Amendment

in absolute terms, they repudiated timid, watered-down, emasculated versions

of the First Amendment. . . .” The key to understanding the First Amendment,

Douglas argued, is to recognize that it exists for the benefit of the American people

as a whole. If the people are to govern themselves, they must have reliable,

independent sources of information. “Effective self-government cannot succeed

unless the people are immersed in a steady, robust, unimpeded, and uncensored

flow of opinion and reporting which are continuously subjected to critique,

rebuttal, and re-examination,” he wrote. In Douglas’s view, the free press cases

that come before the Court are not really about the press per se; they are about the

rights of the American people, the ultimate sovereigns of our system. The press,

which serves as the agent of its audience, is incidental to the greater purpose

of self-government. Douglas continued: “The press has a preferred position in

our constitutional scheme, not to enable it to make money, not to set newsmen

apart as a favored class, but to bring to fulfillment the public’s right to know.

. . . There is no higher function performed under our constitutional regime. Its

performance means that the press is often engaged in projects that bring anxiety

and even fear to the bureaucracies, departments, or officials of government.” He

concluded by warning that the Court’s majority opinion would reduce journalists

to stenographers, and that without the right to protect confidential sources, “the

reporter’s main function in American society will be to pass on to the public the

press releases which the various departments of government issue.”

The majority, however, did not see it that way. As a result of the Court’s 5–4

ruling against the journalists, reporters and their sources have operated in legal

jeopardy ever since, at least in federal courts.

On the state level, the Branzburg ruling had the effect of spurring many legislatures

around the country to enact shield laws to protect reporters in state courts, but Congress has steadfastly

refused to recognize the same right on the federal level. Ironically, the Branzburg

ruling also had another impact: it dried up what was probably the FBI’s greatest

source of information about the Black Panthers—the reporting that anybody

could read in the pages of the New York Times. Of course, by the time Caldwell’s

case was resolved, the Justice Department had lost much of its interest in the

Black Panthers. Most of Caldwell’s contacts were in jail, in exile, or dead.

* * *

Meanwhile, by the late 1960s, more and more people. . .

Leave a comment

Filed under First Amendment, Journalism, journalism history, media, Supreme Court

Leaks, cont.

By Chris Daly

Here is a reminder that when elected officials denounce “leaks” to the news media, what they are usually talking about are unauthorized leaks. Every elected official that I ever covered or researched used leaks when they considered them advantageous. When a leak occurred that proved disadvantageous, they usually denounced those disclosures as horrendous ethical breaches that threatened the integrity of government, blah, blah, blah…

In this case, there is an added bonus: seeing Cheney have to acknowledge that leaking is a tactic (not a matter of principle) and as a super-bonus, seeing Cheney out of the loop.

Plus, a hat-tip to Dave Ignatius.

 

 

3 Comments

Filed under Journalism, journalism history, leaks, Uncategorized