By Roger Aronoff March 28, 2014 12:20 pm
“The press does deserve contempt—but it should come from the public for dereliction of duty,” counters Investors Business Daily in a recent editorial. That’s because, they argue, the press has been largely indifferent to the inroads the administration has made against them: restricting FOIA requests and finding loopholes to deny them, scooping up the Associated Press records en masse, and ignoring how press freedoms in this country have diminished.
Even Freedom of Information Act (FOIA) requests, a common accountability tactic used by journalists and citizens alike, now serve as a testament to the White House’s desire to control all messaging. Cause of Action, which describes itself as a non-partisan government accountability organization, recently released a 2009 memo by White House Counsel Greg Craig that instructs agencies to consider White House “equities” when processing FOIA requests, Government Accountability Office requests, and even judicial subpoenas. “The FOIA requires federal agencies to respond within 20 days of receiving a request, but the White House equities exception can make it impossible for an agency to meet that deadline,” reports Mark Tapscott for the Washington Examiner. Stonewalling becomes the answer to these public requests. Thus, with the normal avenues for gaining information closed off, and the secret ones penalized by the Espionage Act, the press is left to work off of one source—the Obama administration—through press releases, press conferences, and propaganda.
The U.S. recently declined dramatically, falling 13 places to 46th place in terms of press freedom in the world, a sign that President Barack Obama’s pursuit of leakers is taking a toll on freedom in this country. However, the U.S. scored even lower in 2012 on the Reporters Without Borders (RWB) World Press Freedom Index, at 47th place. Liberal in bent, RWB cites the sentencing of Bradley Manning and pursuit of Edward Snowden as the main basis for their decisions, as well as the subpoena of Associated Press phone records.
Accuracy in Media has extensively outlined how Manning and Snowden have, in effect, harmed national security and should be prosecuted for their crimes. But what about the administration’s decision to go after the Associated Press’ phone records—or James Rosen of Fox News? The Obama administration’s war on journalists who print leaked national security information is ongoing, with months of journalists’ phone records subpoenaed, their movements tracked, and their emails invaded. In one case, Fox News journalist James Rosen was even named as a possible “co-conspirator” with leaker Stephen Jin-Woo Kim, who pleaded guilty to the charges against him.
But some in the press have actually taken notice of the restrictive environment created by President Obama. “The Obama administration has used the Espionage Act to go after whistleblowers who leaked to journalists…more than all previous administrations combined,” remarked Jake Tapper on January 2nd. Tapper later conceded that not all of these people should be categorized as whistleblowers, but all could be considered leakers. “Rather than pursuing journalists, the emphasis has been on going after their sources, but often using the journalist to identify them,” notes RWB.
Leonard Downie Jr., long time executive editor of The Washington Post, was the author of the Committee to Protect Journalists October 2013 report titled “The Obama Administration and the Press.” The report said that of the 11 total prosecutions of leakers by the U.S. government using the Espionage Act, eight have occurred during the Obama administration, including six government employees and two contractors, one of whom was Snowden. Downie said that “The [Obama] administration’s war on leaks and other efforts to control information are the most aggressive I’ve seen since the Nixon administration, when I was one of the editors involved in The Washington Post’s investigation of Watergate.”
David Sanger of The New York Times said of the Obama administration, “This is the most closed, control-freak administration I’ve ever covered.” And just last week, New York Times reporter James Risen argued that the Obama administration has been “the greatest enemy of press freedom that we have encountered in at least a generation.” Risen, as reported by the website Poynter, “is fighting an order that he testify in the trial of Jeffrey Sterling, a former CIA officer accused of leaking information to him.” He added that the administration wants to “narrow the field of national security reporting,” to “create a path for accepted reporting.” He said that any journalist “who exceeds those parameters, ‘will be punished,’” and that these prosecutions have created “a de facto Official Secrets Act.” He added that the media have been “too timid” in responding.
Are we doomed to an escalation of government intrusion upon the press? The cases of Stephen Jin-Woo Kim and Jeffrey Sterling have important deadlines this year. Kim’s guilty plea must be approved by a judge, and his sentencing is scheduled to take place on April 2. James Risen has been compelled by the Fourth Circuit to testify whether or not Jeffrey Sterling was a source for classified material about a botched CIA operation to undermine Iranian nuclear efforts. Risen submitted a petition to the Supreme Court claiming that this violates his “reportorial privilege,” or the ability to keep confidence between him and his sources. He faces jail time if he doesn’t out his source, or if the SCOTUS doesn’t come to his rescue.
“Years of communication records for the two men were subpoenaed and seized during the government’s investigation—and itemized in Sterling’s indictment,” wrote Downie Jr. for the CPJ report. “In hindsight, it was the first clear evidence that the Justice Department was digging into the phone and e-mail records of both government officials and journalists while investigating leaks.” So Risen and Sterling’s case was essentially the canary in the coal mine.
When James Rosen was singled out, many rallied around him on Twitter and in the media. CBS News called the surveillance of Rosen “unprecedented.” “Agents monitored Rosen’s movements in and out of the State Department” using electronic security badge records, they reported. “[Agents] searched his personal emails and combed through his cell phone records.” Bipartisan “outrage” ensued, they argue.
“Although the secret subpoena was approved by Holder in May 2010, it and the records seizure did not become known until court records were unsealed three years later,” noted Downie. “Those records showed that the Justice Department went back to court repeatedly during that time for approval to avoid notifying Rosen and Fox News about the subpoena, in an apparent effort to continue to monitor Rosen’s e-mail for other contacts with government officials.”
“It amounted to open-ended government surveillance of a reporter’s communications.”
Outrage also ensued when the public learned that the Department of Justice had subpoenaed two months of Associated Press phone records for more than 20 telephone lines. “There can be no possible justification for such an over broad collection of the telephone communications of The Associated Press and its reporters,” said AP CEO Gary Pruitt at the time.
On the AP matter, Attorney General Eric Holder claimed that he had recused himself, which he wasn’t able to document. And in the Rosen case, Holder assured Congress that he never considered criminal prosecution of journalists—using The Espionage Act—for reporting information that the government considered classified. In both cases, Holder was shown to have not been telling the truth.
The outrage over the ongoing Sterling case and the court’s decision to force journalist James Risen to reveal his source for a chapter in his 2006 book State of War has been more muted. His latest appeal to the Supreme Court has received very little media attention. Politico reported that the Supreme Court decision on whether or not to see the case would likely come no earlier than late February, but that date has come and gone without a decision. Risen recently received an award from the New England First Amendment Coalition, which garnered some media attention.
Also, there is the fact that ample evidence exists to convict Jeffrey Sterling absent Risen’s testimony. For example, according to Risen’s writ of certiori, there is testimony from a witness “that Sterling told her about his plans to meet with someone named ‘Jim,’ who had written an article about Sterling’s discrimination case and was working on a book about the CIA.”
It further states that “The witness testified she understood ‘Jim’ to be Risen and that, when she saw State of War in a bookstore, Sterling told her, without looking at the book, that Chapter 9 was about work he had done at the CIA.” Sterling was also an on-the-record source for a March 2, 2002 article by Risen, and there is “testimony of numerous phone calls between Risen and Sterling’s home in Herndon, Virginia in February/March 2003, immediately before Risen informed the CIA he had information about ‘Operation Merlin.’” There are also, “phone records and emails reflecting dozens of communications between Sterling and Risen.” Why, then, is Risen’s testimony necessary? Is it so that the press freedoms can be further subordinated to government requirements on free speech?
Risen was singled out by Reporters Without Borders, which invited him as a panelist to discuss their World Freedom Index at the Press Club.
“Risen and other journalists complain that the Obama administration has acted with unprecedented aggression by demanding the testimony of journalists in numerous cases, but this reflects the government’s desperation to stop leaking, not a new Orwellian agenda,” argued Professor Eric Posner for Slate in January. But does the desperation to stop leaks really excuse the White House’s aggressive behavior?
While a balance must be struck between protecting the nation’s secrets and having a system in which legitimate whistleblowers are able to confide in reporters to expose government wrongdoing, the Obama administration has demonstrated an unparalleled tendency to keep its actions and records hidden from the American people. And that has occurred during a time that the media have done all they can to downplay or ignore a series of scandals—from Benghazi, to the IRS to Operation Fast and Furious—any one of which would likely have brought a Republican administration down.