In one of his final opinions as a Supreme Court Justice, Hugo Black in the 1971 Pentagon Papers case wrote that “The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government.” The Court’s 6-3 decision granted the Washington Post and New York Times permission to resume publishing a comprehensive and classified government history of the Vietnam War. The permission was granted over the “national security” objections of the Nixon administration. Black’s opinion stressed that the “press was protected so that it could bare the secrets of government and inform the people.”
The Pentagon Papers case revolved around the more traditional press debate regarding prior restraint: if and when the government has the right to stop news organizations from disseminating sensitive information. The Supreme Court’s landmark 1931 media ruling, Near v. Minnesota, declared that almost all forms of prior restraint were unconstitutional. One of the few exceptions included issues of national security.*
Of course, the recent Obama administration controversies surrounding freedom of the press revolve around national security and the intense prosecutorial efforts by the government to weed out leakers of classified information. Rather than trying to stop journalists from reporting national security news, federal law enforcement seems preoccupied with snooping around, in increasingly clandestine ways, and ensnaring reporters in criminal investigations.
Whether it was the Department of Justice’s wild overreach in seizing phone records of more than 20 separate telephone lines used by Associated Press editors and reporters, or the Department’s more focused, yet even more troubling, information grab of a Fox News reporter, the practice is wrong and shortsighted. It’s also un-American.
The Founding Fathers had the foresight to carve out extraordinary privileges and protections for the press, and for centuries they have endured. So why now turn our storied First Amendment into the Sort Of First Amendment or the When It’s Convenient First Amendment?
Imagine what international observers must be thinking as they watch the U.S. government, in the name of leak investigations, chisel away at one of America’s most famous contributions to the democratic way of life: Freedom of the press.
Yet it’s also important to note that despite some of the heated rhetoric in recent days, there’s little evidence that the federal government is waging some sort of all-out war on journalism (that it’s “spying” on reporters), or that it’s set out a dangerous new policy to “criminalize” the craft. And no, Fox News certainly hasn’t been “targeted” by the Obama administration, despite Fox’s plaintive cries of victimhood in recent days. (There’s certainly no evidence to back up Shepard Smith’s baseless on-air claim that the Department of Justice “went into” Fox News computer servers and “pulled things out.”)
First Amendment alarms bells went off when it was revealed that Fox News’ James Rosen had been described as “at the very least, either as an aider, abettor and/or co-conspirator” in a 2010 FBI affidavit in support of warrant seeking permission to look through the reporter’s phone records as well as the contents of his Gmail account. The FBI was looking for correspondences with then-State Department security adviser Stephen Jin-Woo Kim, charged with leaking classified information to Rosen about North Korea in 2009.
Those First Amendment alarm bells were justified.
The Rosen warrant request appears to be the first time (that we know of) that the government singled out a journalist as a possible criminal during a leak investigation. In other words, it was the first time law enforcement in court proceedings suggested it was a crime to publish, or to try to obtain, classified information. (It is not.) The FBI’s targets in the past had always focused on the leakers, not those receiving the leaks.
And in the past, when law enforcement wanted to obtain phone records or other personal communications from journalists, they were supposed to issue narrow subpoenas after exhausting all other investigative avenues. (And only after the Attorney General personally approved of the move.) Prosecutors also notified the media company in question about the subpoena, unless notification threatened the integrity of the investigation.
Prior to the Washington Post story being published on May 20, Rosen knew nothing of the search warrant or that it had been acted upon. And that’s why the alarm bells sounded, and with good reason. The idea that federal law enforcement can simply grab a reporter’s private communication without the reporter or his news employer ever being notified — and without them given a chance to persuade a judge the stop the action (i.e. judicial relief) — is wrong and it’s dangerous and in the Rosen case it was unacceptable.
But also note that Rosen being unaware the FBI grabbed his emails was, in weird way, reassuring. It’s reassuring because despite the alarming wording of the warrant request (“abettor and/or co-conspirator”), no charges were ever brought against Rosen, and according to the FBI none are expected to be forthcoming.
Despite the disturbing language used in the single FBI warrant request, reportedly approved by Attorney General Eric Holder, the Rosen case not does appear to reflect a larger policy shift within the Department of Justice to “criminalize” reporting. Plus, there’s recent evidence to suggest the DOJ has declined to take drastic steps against the press during a national security leak investigation.
On May 17, The Smoking Gun reported that FBI counterintelligence agents had overseen a lengthy leak investigation after The Smoking Gun published a classified, 12-page CIA report detailing the organizing activities of al-Qaeda members imprisoned at Guantanamo Bay.
Thanks to a Freedom of Information Act request, the Smoking Gun learned:
The case remained open for three years and eight months, spanning the Bush and Obama administrations. It was formally closed in March 2010 when, after much internal debate, the Department of Justice’s Counterespionage Section declined to authorize a subpoena–sought by the FBI–compelling [The Smoking Gun’s] editor to testify before a grand jury about its source.
Faced with taking the extreme measure of forcing an editor to testify before a grand jury about the identify of a source, the DOJ declined, and instead closed down an unsuccessful leak investigation. If there really were a top-down administration attempt to “criminalize” national security reporting, wouldn’t that editor have been compelled to testify?
Right now though, that remains a small consolation.
After more than three years in custody, Pfc. Bradley Manning’s trial finally began on June 3. The 25-year old Oklahoma native has already pled guilty to ten charges, but faces prosecution on 12 more relating to the 2010 release of restricted government documents to Wikileaks.
For his ten guilty pleas, Manning can face up to 16 years in prison. But the 12 additional charges could send Manning to jail for the rest of his life. Although he is charged with “aiding the enemy,” a capital offense, prosecutors will not seek the death penalty. While Manning’s actions were in defiance of U.S. government secrecy, his trial will be almost completely shrouded in it.
Less Access Than Guantanamo Bay Proceedings
Court documents are being withheld and redacted and pretrial hearings have been closed off from public view. It is estimated that 30% of the trial’s proceedings will be conducted in secret to protect witness identity and national security information. Other, more ridiculous secrecy measures have also taken place. Photographers are denied a clear shot of the defendant and his supporters were forced to turn their pro-Manning t-shirts inside out.
The government has even refused to provide transcripts of the proceeding. In response, the Freedom of the Press foundation attempted to hire stenographers to attend the public portions of the trial in order to give the world the most accurate possible picture of the events. This measure was denied at first but the government relented after a few days.
This level of secrecy at trial is not surprising if one examines the history of the case. After being arrested, Pfc. Manning was held in solitary confinement for 11 months at the Marine Corps base in Quantico, Virginia under conditions which led the UN Special Rapporteur on Torture to say that the U.S. government was guilty of cruel, inhuman and degrading treatment.
While Manning was locked away, the government gave minimal access to his lawyers and other concerned groups. In May 2012, the Center for Constitutional Rights filed a petition for extraordinary relief filed with the Army Court of Criminal Appeals, and a subsequent writ-appeal filed with the Court of Appeals for the Armed Forces, arguing that the First Amendment ensured public and press access to the government’s motion papers, the court’s own orders, and transcripts of proceedings, which had remained hidden from view. The petition was denied in a 3-2 decision.
A letter signed by more than 40 news organizations was sent to Pentagon General Counsel Jeh Johnson claiming that less access was given to reporters in the Manning case than cases involving Guantanamo Bay detainees.
Constitutional Protections for Speedy and Public Trial Flouted
This begs the question of the appropriate level of secrecy in such a high profile case. The 6th Amendment demands that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Military law generally requires a trial within 120 days. The court martial of Bradley Manning is certainly a criminal trial, yet the military is allowed to deny access to significant portions of it. This has led some to question the constitutionality of the proceedings.
According to the Rule of Court Martial 806, the 6th Amendment guarantee of a public trial is preserved but is “not absolute.” Closure is possible if, (1) there is a substantial probability that an overriding interest will be prejudiced if the proceedings remain open; (2) closure is no broader than necessary to protect the overriding interest; (3) reasonable alternatives to closure were considered and found inadequate; and (4) the military judge makes case-specific findings on the record justifying closure. But why do we accept this watered down version of the Sixth Amendment for members of the military accused of crimes? The Sixth Amendment exists in order to protect defendants from “malicious prosecutions, corrupt judges and dishonest jury members.” Military service men and women are as deserving of these protections as everybody else.
Military judge Army Col. Denise Lind, who also presided over the closed pretrial hearings, has denied public access to testimony by some of the 24 witnesses in order to protect “classified information.” Defense lawyers offered alternatives to closing public accesses, but Judge Lind found those alternatives to be insufficient to guard the overriding interest of secrecy. Others have argued that Judge Lind’s confidentiality measures are designed to “minimize distractions and maintain law-and-order.” Eugene Fidell, who teaches military law at Yale Law School stated “people do occasionally act out in courtrooms, both spectators or witnesses or the accused, but I’m sure that the Army knows how to maintain order, and I’m not sure that it’s necessary to do it with as heavy a hand as seems to be implied here.”
What is the Government Afraid Of?
Even if we accept that criminal cases in military courts can be closed more easily than civilian courts, it does not appear that there is strong justification for closure in the Manning trial. Chase Madar of The Nation, pointed out seven myths that have surrounded Manning’s release of sensitive documents, his prosecution, and the media’s coverage of these events. He reports the fact that none of the documents Manning released were “top secret.” In fact, “more than half of the diplomatic cables are not classified in any way, and neither was the infamous helicopter gunfight video that shows an Apache gunship slaughtering a dozen Iraqis, including two Reuters news agency employees.”
Secondly, Madar asserts that there is no evidence to prove that Manning’s leaks resulted in the death of any American or damage to national interests. If the information released by Manning was not so secret and did not result in any destruction of American lives or interests, why must his trial involve evidence so secret that it warrants public closure?
The government can always offer the same line of national security interests to justify keeping the public blissfully ignorant of the crimes it commits. The same argument was proffered by the government to stop the release of the Pentagon Papers which included explosive revelations about the U.S. war in Vietnam. The release of the papers did no harm to American interests, but rather informed people of the crimes perpetrated in their name and the lies told to the public by the administration of Lyndon Baines Johnson.
First Amendment law expert Floyd Abrams, who represented the New York Times in the Pentagon Papers case and Yochai Benkler of Harvard Law School, wrote about the significance of the Manning trial for whistle blowers in America in a Times op-ed entitled “Death to Whistle-Blowers?”
If found guilty on serious charges, “the prosecution will establish a chilling precedent: national security leaks may subject the leakers to a capital prosecution or at least life imprisonment,” the two wrote. “Anyone who holds freedom of the press dear should shudder at the threat that the prosecution’s theory presents to journalists, their sources and the public that relies on them.”
The Freedom of the Press Foundation continues to provide crowd-funded professional stenographers for the Manning trial. Learn more here and access the transcripts here. Also related to this story CMD’s SourceWatch articles on Wikileaks and Julian Assange.
The US military has refused to release transcripts of Bradley Manning’s trial. In addition, they’ve denied press passes to 270 out of the 350 media organizations that applied. Without public transcripts or a press pass, it’s virtually impossible for media organizations to accurately cover the trial and for the public to know what the government is doing in its name.
In response, Freedom of the Press Foundation has crowd-sourced funding to place a professional stenographer in the media room covering the trial.
We will post full transcripts shortly after each day’s proceedings end. The morning session with be posted by 7 pm the same evening. The afternoon session will be posted by 9 am the next morning. The transcripts will be released under an Attribution 3.0 Unported Creative Commons license.
Depending on how long the trial lasts, transcriptions will cost between $60,000-120,000, so please help support this project by going here to donate.
Here are the transcripts.
Also, read this opinion piece at the Foundation’s website, by Rainey Reitman: “Searching for an Enemy in the Case of Bradley Manning”
Leaked Audio of Bradley Manning’s statement released by Freedom …
Help crowd-fund a court stenographer for the trial of accused …
Freedom of the Press Foundation: an update, from John Cusack …
Boing Boing joins media coalition asking Manning judge to provide …
A Salute to Bradley Manning, Whistleblower, As We Hear His Words …
Boing Boing editor/partner and tech culture journalist Xeni Jardin hosts and produces Boing Boing’s in-flight TV channel on Virgin America airlines (#10 on the dial), and writes about living with breast cancer. Diagnosed in 2011. @xeni on Twitter. email: email@example.com.
Attorney General Eric Holder. (Reuters/Jonathan Ernst)
Democrats and Republicans working together in Washington to address abuses of basic liberties? Bipartisan responses to the challenges that arise in the gray area where balances are struck between constitutional guarantees and national security demands? Impossible. Can’t happen. There is no way in these days of fury and scandal-mongering.
Actually, there is a way.
A genuine left-right coalition has developed over the past several days in response to the revelation that the Department of Justice seized Associated Press telephone records in its recent investigation of a CIA leak. And that coalition is likely to strengthen in light of the news that the DOJ investigated the reporting activities of Fox News’s chief Washington correspondent as a potential crime — “solicitation” of leaks. The latter development, in many senses more troubling than the former, calls into question whether basic protections for both reporters and whistleblowers are crumbling after more than a decade of Patriot Act abuses, Bush and Obama administration excesses and the politicization of debates about what were once accepted standards for protecting the public’s right to know and the privacy rights that underpin it.
In moments so rigorously partisan as these, many members of Congress will retreat to their corners, mounting attacks or making excuses. But there are some serious legislators, libertarian-leaning Republicans and progressive Democrats, who understand the urgency of the moment.
They get that the revelations about DOJ over-reach reveal a threat not just to freedom of the press but to the most necessary of press functions: the work of revealing for citizens the details of what their government is doing in their name but without their informed consent. None of these members are foolish or casual in their approach; they understand that it is necessary for the government to protect against the leaking of information that could endanger people. But they also understand that it is possible to provide that protection within a constitutional context.
Perhaps most importantly, they get that the best way to protect the First Amendment guarantee of a free press is to protect the Fourth Amendment guarantee of privacy. Journalists do not need — and should not seek — an array of special protections to do their jobs. But journalists and their sources do need to know that information can be shared without the threat of unwarranted — and self-serving — government surveillance of necessary conversations.
It is with this in mind that four very different members of Congress (Michigan Republican Justin Amash, South Carolina Republican Mick Mulvaney, California Democrat Zoe Lofgren and Colorado Democrat Jared Polis) have proposed a precise and appropriate response to the overreach by the Department of Justice. While the White House and key members of the Senate are backing a Shield Law, which protects journalists from being required to reveal sources, the House members are going deeper — to protect not just journalists but all citizens from “unreasonable searches and seizures.” They seek a Telephone Records Protection Act, which requires court approval when the government demands telephone records from service providers.
“The Justice Department’s seizure of the AP’s phone records — likely without the sign-off of a single judge — raises serious First and Fourth Amendment concerns,” says Amash, who has emerged as a hero to libertarian-leaning conservatives. “Regardless of whether DOJ violates the legitimate privacy expectations of reporters or ordinary Americans, we deserve to know that the federal government can’t seize our records without judicial review.”
Polis, a member of the Congressional Progressive Caucus, says, “Americans of all political stripes were shocked to find out that the Department of Justice had been accessing telephone records of reporters at the Associated Press. The Department of Justice claims that they operated within the confines of the law, which makes it abundantly clear that we need to provide a higher level of protection against government intrusion into an individual’s private records.”
This is an essential equation for all Americans who value the right to privacy outlined in the Fourth Amendment. But it is especially essential when it comes to constructing a press system that serves the intention expressed by the founders: to inform citizens so that they can, with their votes, steer the affairs of state.
This is what Thomas Jefferson recognized more than 227 years ago when he wrote to John Jay, “Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it.”
In the same letter, Jefferson wrote: “No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions.”
Associated Press President Gary Pruitt updated the Jeffersonian premise when he explained that the Justice Department’s actions were not just “unconstitutional” but destructive to the public’s right to know, insofar as such monitoring of media makes sources less willing to talk to journalists and reduces the likelihood that citizens will learn what their government is up to.
“If they restrict that apparatus [of newsgathering about controversial government actions] the people of the United States will only know what the government wants them to know and that’s not what the framers of the Constitution had in mind when they wrote the First Amendment,” explained the head of the country’s largest news service.
Pruitt’s right. No matter what action is taken, or not taken, journalists will continue to clog the corridors of the Capitol and crowd into White House press briefings. The question is whether those journalists will be present to challenge the status quo or as mere stenographers to power.
That’s a distinction that members of Congress who take seriously their oath to support and defend the Constitution of the United States understand. Indeed, it is the distinction that James Madison, the essential player in the drafting of the core document and of the Bill of Rights, was getting at when he said, “A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”
Justin Amash and Jared Polis are not going to agree on most issues. Neither are Mick Mulvaney and Zoe Lofgren.
But they can agree on the basic outlines of the American experiment and how it must operate.
This is as the founders of that experiment intended: a free press providing a free people with the information they need to be their own governors.
John Nichols is the author (with Robert w. McChesney) of the upcoming book Dollarocracy: How the Money and Media Election Complex is Destroying America. Hailed by Publisher’s Weekly as “a fervent call to action for reformers,” it details how the collapse of journalism and the rise of big-money politics threatens to turn our democracy into a dollarocracy.