And they should get it (much as I would like to side with B.U. alum Pete Souza, the official White House photographer).
Here’s a version.
And they should get it (much as I would like to side with B.U. alum Pete Souza, the official White House photographer).
Here’s a version.
By Christopher B. Daly
It was disappointing to see the vote in the House on a measure to rein in the NSA fall a bit short on Thursday. It was particularly disappointing to see my own Rep., the rookie Joe Kennedy, vote on the wrong side. (Was he taking one for Obama? Not worth it. Here’s a tip, Joe: Never vote with Michelle Bachmann.) Interesting to note that many of the Democrats in favor were members with tremendous seniority — they have seen presidents come and go, they are not afraid to buck the party’s floor leadership, and they have been lied to so many times by the surveillance state that they have just had it.
On the plus side, this rather hurried attempt to rein in the surveillance state came darn near passing. Getting 205 votes in the House is not nothing, and it certainly sends a powerful signal around Washington and the world.
A look ahead, from the Times (quoting Rep. Jerry Nadler):
At the very least, the section of the Patriot Act in question will be allowed to expire in 2015, he said. “It’s going to end — now or later,” Mr. Nadler said. “The only question is when and on what terms.”
By Christopher B. Daly
Today’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 President 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 policy 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!
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.
By Christopher B. Daly
President Obama says that when it comes to deciding on the wisdom of the government’s vast data-mining operations, “I welcome this debate.” What he did not say is that we could not have such a debate unless journalists reported on leaks of classified information. The executive branch’s Plan A was to do all this in secret and never debate it.
Here is a transcript of his remarks Friday on the subject. Taken as a whole, it is quite thoughtful, nuanced, and worth considering. But it is based on a fundamentally misleading premise (which I have highlighted in bold).
Obama’s Remarks on Health Care and Surveillance
The following is a [partial — cbd] transcript of President Obama’s remarks about the health care overhaul and response to a question about electronic surveillance in San Jose, Calif., as provided by the White House:
QUESTION: Mr. President?
MR. OBAMA: I’m going to take one question. And then, remember, people are going to have opportunities to also — answer questions when I’m with the Chinese President today. So I don’t want the whole day to just be a bleeding press conference. But I’m going to take Jackie Calmes’ question.
QUESTION: Mr. President, could you please react to the reports of secret government surveillance of phones and Internet? And can you also assure Americans that the government — your government doesn’t have some massive secret database of all their personal online information and activities?
MR. OBAMA: Yes. When I came into this office, I made two commitments that are more important than any commitment I made: Number one, to keep the American people safe; and number two, to uphold the Constitution. And that includes what I consider to be a constitutional right to privacy and an observance of civil liberties.
Now, the programs that have been discussed over the last couple days in the press are secret in the sense that they’re classified. But they’re not secret in the sense that when it comes to telephone calls, every member of Congress has been briefed on this program. With respect to all these programs, the relevant intelligence committees are fully briefed on these programs. These are programs that have been authorized by broad bipartisan majorities repeatedly since 2006.
And so, I think at the outset, it’s important to understand that your duly elected representatives have been consistently informed on exactly what we’re doing. Now, let me take the two issues separately.
When it comes to telephone calls, nobody is listening to your telephone calls. That’s not what this program is about. As was indicated, what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people’s names, and they’re not looking at content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism. If these folks — if the intelligence community then actually wants to listen to a phone call, they’ve got to go back to a federal judge, just like they would in a criminal investigation.
So I want to be very clear — some of the hype that we’ve been hearing over the last day or so — nobody is listening to the content of people’s phone calls. This program, by the way, is fully overseen not just by Congress, but by the FISA Court — a court specially put together to evaluate classified programs to make sure that the executive branch, or government generally, is not abusing them, and that it’s being carried out consistent with the Constitution and rule of law.
And so, not only does that court authorize the initial gathering of data, but — I want to repeat — if anybody in government wanted to go further than just that top-line data and want to, for example, listen to Jackie Calmes’ phone call, they would have to go back to a federal judge and indicate why, in fact, they were doing further probing.
Now, with respect to the Internet and emails — this does not apply to U.S. citizens and it does not apply to people living in the United States. And again, in this instance, not only is Congress fully apprised of it, but what is also true is that the FISA Court has to authorize it.
So in summary, what you’ve got is two programs that were originally authorized by Congress, have been repeatedly authorized by Congress, bipartisan majorities have approved on them, Congress is continually briefed on how these are conducted. There are a whole range of safeguards involved, and federal judges are overseeing the entire program throughout. We’re also setting up — we’ve also set up an audit process, when I came into office, to make sure that we’re, after the fact, making absolutely certain that all the safeguards are being properly observed.
Now, having said all that, you’ll remember when I made that speech a couple of weeks ago about the need for us to shift out of a perpetual war mindset, I specifically said that one of the things that we’re going to have to discuss and debate is how are we striking this balance between the need to keep the American people safe and our concerns about privacy? Because there are some tradeoffs involved.
I welcome this debate. And I think it’s healthy for our democracy. I think it’s a sign of maturity, because probably five years ago, six years ago, we might not have been having this debate. And I think it’s interesting that there are some folks on the left but also some folks on the right who are now worried about it who weren’t very worried about it when there was a Republican President. I think that’s good that we’re having this discussion.
But I think it’s important for everybody to understand — and I think the American people understand — that there are some tradeoffs involved. I came in with a healthy skepticism about these programs. My team evaluated them. We scrubbed them thoroughly. We actually expanded some of the oversight, increased some of safeguards. But my assessment and my team’s assessment was that they help us prevent terrorist attacks. And the modest encroachments on the privacy that are involved in getting phone numbers or duration without a name attached and not looking at content, that on net, it was worth us doing. Some other folks may have a different assessment on that.
But I think it’s important to recognize that you can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience. We’re going to have to make some choices as a society. And what I can say is that in evaluating these programs, they make a difference in our capacity to anticipate and prevent possible terrorist activity. And the fact that they’re under very strict supervision by all three branches of government and that they do not involve listening to people’s phone calls, do not involve reading the emails of U.S. citizens or U.S. residents absent further action by a federal court that is entirely consistent with what we would do, for example, in a criminal investigation — I think on balance, we have established a process and a procedure that the American people should feel comfortable about.
But, again, these programs are subject to congressional oversight and congressional reauthorization and congressional debate. And if there are members of Congress who feel differently, then they should speak up. And we’re happy to have that debate.
Okay? All right. And we’ll have a chance to talk further over the course of the next couple of days.
QUESTION: Do you welcome the leaks, sir? Do you welcome the leaks? Do you welcome the debate?
MR. OBAMA: I don’t welcome leaks, because there’s a reason why these programs are classified. I think that there is a suggestion that somehow any classified program is a “secret” program, which means it’s somehow suspicious.
The fact of the matter is in our modern history, there are a whole range of programs that have been classified because — when it comes to, for example, fighting terror, our goal is to stop folks from doing us harm. And if every step that we’re taking to try to prevent a terrorist act is on the front page of the newspapers or on television, then presumably the people who are trying to do us harm are going to be able to get around our preventive measures. That’s why these things are classified.
But that’s also why we set up congressional oversight. These are the folks you all vote for as your representatives in Congress, and they’re being fully briefed on these programs. And if, in fact, there was — there were abuses taking place, presumably those members of Congress could raise those issues very aggressively. They’re empowered to do so.
We also have federal judges that we put in place who are not subject to political pressure. They’ve got lifetime tenure as federal judges, and they’re empowered to look over our shoulder at the executive branch to make sure that these programs aren’t being abused.
So we have a system in which some information is classified, and we have a system of checks and balances to make sure that it’s not abused. And if, in fact, this information ends up just being dumped out willy-nilly without regard to risks to the program, risks to the people involved — in some cases, on other leaks, risks to personnel in a very dangerous situation — then it’s very hard for us to be as effective in protecting the American people.
That’s not to suggest that you just say, trust me; we’re doing the right thing; we know who the bad guys are. And the reason that’s not how it works is because we’ve got congressional oversight and judicial oversight. And if people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.
But my observation is, is that the people who are involved in America’s national security, they take this work very seriously. They cherish our Constitution. The last thing they’d be doing is taking programs like this to listen to somebody’s phone calls.
And by the way, with respect to my concerns about privacy issues, I will leave this office at some point, sometime in the last — next three and a half years, and after that, I will be a private citizen. And I suspect that, on a list of people who might be targeted so that somebody could read their emails or listen to their phone calls, I’d probably be pretty high on that list. It’s not as if I don’t have a personal interest in making sure my privacy is protected.
But I know that the people who are involved in these programs, they operate like professionals. And these things are very narrowly circumscribed. They’re very focused. And in the abstract, you can complain about Big Brother and how this is a potential program run amuck, but when you actually look at the details, then I think we’ve struck the right balance.
Thank you very much, guys.
By Christopher B. Daly
It gives me no satisfaction to say that President Obama has been worse than disappointing when it comes to his treatment of journalists (and their sources) or his retreat from transparency (and thus accountability) in government.
It has to be said: The president has engaged in “a long train of abuses . . . pursuing invariably the same Object.”
The case against him is laid out in this open letter from whistleblowers, posted in the Guardian. This is the most comprehensive indictment I have seen to date.
In his lengthy speech yesterday about how he sees the war on terror, Obama threw in a brief passage near the end about the collateral damage that the war on terror is doing to the news media. It strikes me as too little, too late. Here it is:
The Justice Department’s investigation of national security leaks offers a recent example of the challenges involved in striking the right balance between our security and our open society. As Commander-in Chief, I believe we must keep information secret that protects our operations and our people in the field. To do so, we must enforce consequences for those who break the law and breach their commitment to protect classified information. But a free press is also essential for our democracy. I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.
Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law. That is why I have called on Congress to pass a media shield law to guard against government over-reach. I have raised these issues with the Attorney General, who shares my concern. So he has agreed to review existing Department of Justice guidelines governing investigations that involve reporters, and will convene a group of media organizations to hear their concerns as part of that review. And I have directed the Attorney General to report back to me by July 12th.
We’ll see what Eric Holder comes up with. But based on his record, I don’t expect much. So far, Holder has been part of the problem, not part of the solution.
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.
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.
By Christopher B. Daly
By approving or tolerating the abuses of power involved in the AP and Fox News cases, President Obama has positioned himself on the wrong side of the First Amendment. He is moving in the direction of making journalism a criminal activity.
For a former constitutional law professor, that is beyond disappointing.
For a politician who needs the press to govern, that is just stupid.
More evidence comes from the group Reporters Without Borders, an international journalism-advocacy group that supports press freedom in places like Morocco and Bahrain. Now, they feel the need to express concern about the state of press freedom in the United States, where the concept was born. Sheesh.
Also, don’t miss this comment from Ryan Lizza in The New Yorker.
Don’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.
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.”