Tag Archives: Leaks

Where Obama is dangerously wrong about journalism

imgres3Don’t miss this excellent piece by Glenn Greenwald, which ran recently in The Guardian. In it, Greenwald — a lawyer, journalist, and prize-winning author — carefully builds a case about what the Obama administration is doing. In short, he argues that the DoJ (with Obama’s certain knowledge) is taking steps to make it a crime to do many of the activities that constitute investigative journalism. The focus is the case involving Fox News’ James Rosen, but most of these thoughts apply to many other cases as well.

This is something that all journalists, all political progressives, and all Obama supporters need to grasp. The president is wrong on this, and his people are out of control.

The take-away:

Under US law, it is not illegal to publish classified information. That fact, along with the First Amendment’s guarantee of press freedoms, is what has prevented the US government from ever prosecuting journalists for reporting on what the US government does in secret. This newfound theory of the Obama DOJ – that a journalist can be guilty of crimes for “soliciting” the disclosure of classified information – is a means for circumventing those safeguards and criminalizing the act of investigative journalism itself. These latest revelations show that this is not just a theory but one put into practice, as the Obama DOJ submitted court documents accusing a journalist of committing crimes by doing this.

That same “solicitation” theory, as the New York Times reported back in 2011, is the one the Obama DOJ has been using to justify its ongoing criminal investigation of WikiLeaks and Julian Assange: that because Assange solicited or encouraged Manning to leak classified information, the US government can “charge [Assange] as a conspirator in the leak, not just as a passive recipient of the documents who then published them.”

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Filed under broadcasting, First Amendment, Fox News, Journalism, journalism history, leaks, Obama, Politics, President Obama

Memo to Obama: Hands off the news media!

By Christopher B. Daly

Today brings more disappointing news about the Obama administration. As they spend more years in office, they are starting to revert to the mean and resemble a very ordinary power-grabbing, rights-trampling, self-serving operation. Alas.

NYT coverage / WaPo coverage.

Image_FreeSpeechWhile they have been busy not closing Guantanamo, this administration has been busy setting the all-time record for leaks investigations. The latest misguided attempt to stop leaks is the disclosure that the Obama Justice Dept. “secretly seized two months of phone records for reporters and editors of The Associated Press.” The rationale was that the AP had received a “leak” from someone in the government about a CIA operation to disrupt a plot unfolding in Yemen that was aimed at taking down an airliner. If true, that was a fine thing for the CIA to do. If true, then the folks in the CIA running the operation should have kept their mouths shut. If someone in the government who had knowledge of it spilled the beans, that’s not the fault of journalists. The Obama administration, like every other administration, needs to get its own house in order. You don’t stop leaks by trampling the First Amendment.

Instead, we get this (from NYT):

The A.P. said that the Justice Department informed it on Friday that law enforcement officials had obtained the records for more than 20 telephone lines of its offices and journalists, including their home phones and cellphones. It said the records were seized without notice sometime this year. The organization was not told the reason for the seizure.

The First Amendment exists to safeguard the right of the American people to be informed. The only known means to provide the kind of information we need to govern ourselves comes from a free and independent press, which is protected in its new-gathering every bit as much as it is protected in its news-telling. If the executive branch investigates the news media every time its own employees leak information, that cannot help but have a “chilling effect” on the news business.

This is ancient truth, going back at least as far as the Pentagon Papers and Watergate. If Obama does not want to go down in history in the same chapter with Richard Nixon, he has got to cut this stuff out. He could start by firing Attorney General Eric Holder.

Memo to the AP: The government got all those phone records from your telephone company. I would suggest you cancel your account and try a different carrier. 

Hat-tip: to NYT’s Charlie Savage, who seems to have staked out a new beat: reporting on the constitutional infringements and other abuses of power committed by the Obama administration.

Obligatory quote: Here’s Thomas Jefferson on the dangers of executive power:

"Aware of the tendency of power to degenerate into abuse, the
worthies of our country have secured its independence by the15715v
establishment of a Constitution and form of government for our
nation, calculated to prevent as well as to correct abuse." 
--Thomas Jefferson to Washington Tammany Society, 1809.

Clarification: Of course, what the administration objects to are unauthorized leaks. The leaks they plan and execute for their own purposes are, naturally, quite alright.


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Leaks (cont.)

By Christopher B. Daly

The able legal-affairs reporter Charlie Savage and Scott Shane have an interesting update in today’s Times about the issue of national-security leaks. The upshot is that the Obama administration has (surprisingly perhaps) emerged as the all-time record-holder among all U.S. presidential administrations for prosecuting leaks. (The piece has a helpful sidebar — which was better looking in print than online — that summarizes nine known leaks cases.)

A couple of related questions:

–Which administration holds the record for generating leaks? (probably a two-term president like Nixon, Reagan, G.W.Bush? or like Clinton?)

–Isn’t it worthwhile to distinguish between different types of leaks?

A. We might differentiate between authorized and unauthorized leaks.

B. We might differentiate between leaks to journalists and leaks to others.

C. We might differentiate between leaks that do harm and those that do not.

For example, it is one thing for a traitor to steal operational secrets and sell or give them to agents of a hostile power. That’s the kind of leak that should properly trigger Congressional outrage and lead to criminal prosecutions. That kind of leak raises no First Amendment issues.

It is quite a different thing for a troubled official to tell a journalist about a secret policy so that the public can debate whether that policy is a good idea. It is this kind of leak that usually induces partisan posturing and leak investigations that fizzle. It is also the kind of leak that requires a careful weighing of the First Amendment implications.

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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.


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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?

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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

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.










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