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.
U.S. Attorney General Eric Holder claimed that theAP leak put U.S. lives at risk and demanded “very aggressive” method of investigation, reported the BBC.
Revelations this week of a secret Justice Department seizure of two months’ worth of phone records from The Associated Press are the latest flare up in tense relationship between the U.S. government and the media when it comes to whistleblowers.
The Obama administration’s legacy with access to information and whistleblowers has been contentious. While the administration claims it’s the “most transparent” in history, many critics accused the president of doublespeak on the issue, lauding whistleblowers with the Whistleblower Protection Enhancement act of November 2012 while aggressively prosecuting leaks at the same time.
According to a statement from the White House, the president’s office was not involved in the Justice Department’s request of the AP’s phone records, reported The Huffington Post.
According to The New York Times, the Obama administration has waged the most aggressive campaign against whistleblowers in U.S. history, responsible for six of the nine total indictments ever brought under the 1917 Espionage Act. See a brief timeline of the prosecutions assembled by the newspaper here, including the famous 1973 Pentagon Papers case.
Reporters Without Borders condemned the act as a “grave violation” of press freedom and argued that the Justice Department’s overstep signals the need for a federal shield law to protect journalists and their sources from government interference.
The Obama administration has six current and former government officials indicted on leak-related charges so far, reported The New York Times this morning. Here’s a list of them:
1. Shamai K. Leibowitz, 2009
Leibowitz, a former-FBI Hebrew translator, pleaded guilty to leaking classified information to Richard Silverstein who blogs at Tikun Olam, reported AlterNet. The translator passed 200 pages of transcribed conversations recorded by FBI wiretaps of the Israeli embassy in Washington, D.C. Leibowitz was sentenced to up to 20 months in prison, according to The Washington Post.
2. Stephen Jin-Woo Kim, 2010
Kim was a nuclear proliferation expert working on a contract basis for the U.S. State Department when he was accused of leaking information about North Korea to Fox News.
The Justice Department claimed that Kim was the source behind Fox News journalist James Rosen’s 2009 report suggesting that the North would likely test another nuclear bomb in reaction to a United Nations Security Council resolution condemning its tests, reported AlterNet.
Kim pleaded not guilty to the charges. A Federal Grand Jury indicted him but the case has not gone to trial, according to The New York Times.
3. Thomas Drake, 2010
Drake worked as a senior executive at the National Security Agency when he was charged with “willful retention” of classified documents under the Espionage Act. He leaked information about government waste on digital data gathering technology to The Baltimore Sun, according to AlterNet.
At one point Drake faced up to 35 years in prison for several charges. Eventually, most of the charges were dropped and he pleaded guilty to a misdemeanor for “exceeding authorized use of a computer.” He was sentenced to one-year probation and community service.
4. Pfc. Bradley Manning, 2010
Probably the best known of the six under indictment, Manning was the source behind the WikiLeaks and CableGate information dumps. Critics accuse the government of dragging its feet and aggressively redacting requests for public information about the trial. One journalist opined that the Guantanamo military tribunals were more transparent.
Manning faces a court martial and a harsher sentence that could include life in prison without parole, reported The New York Times. AlterNet pointed out, however, that prosecutors would have to prove Manning released the documents with the intention of harming the U.S. to win those harsher charges, something Manning denies. His trial is set for next month, June 3.
5. Jeffery Sterling, 2010
Sterling, a former-CIA official, pleaded not guilty to leaking information to New York Times journalist James Risen regarding a failed U.S. attempt to sabotage Iran’s nuclear program. The information in question was published in Risen’s book “State of War.”
Risen successfully fought several subpoenas from the federal government to reveal his sources during Sterling’s trial, according to the Committee to Protect Journalists. The Justice Department announced in the summer of 2012 that it has “effectively terminated” the case, according to the Times.
6. John C. Kiriakou, 2012
One of the few prosecuted under the Espionage act to serve jail time, Kiriakou was sentenced to 30 months in prison on Jan. 25, 2013, for leaking classified information to the media. Kiriakou pleaded not guilty to releasing the name of an undercover CIA agent to a reporter and information about the intelligence agency’s use of waterboarding, a controversial interrogation technique.
Kiriakou is the first person successfully prosecuted under the Intelligence Identities Protection Act in 27 years, according to the Times. The reporter the ex-CIA official spoke to did not publish the undercover agent’s name, although the Times pointed out that the agent’s identity appeared in a sealed legal filing and on an “obscure” website.