Outside the Beltway

The Obama Administration’s Leak Investigations Threaten Press Freedom

The Obama Administration's aggressive pursuit of leaks is threatening freedom of the press.

Doug Mataconis · Monday, May 27, 2013 · 15 comments

Yesterday’s New York Times includes a report of just how wide ranging the Obama Administration’s leak investigations, and surveillance of journalists has become over the past four years:

WASHINGTON — Even before the F.B.I. conducted 550 interviews of officials and seized the phone records of Associated Press reporters in a leak investigation connected to a 2012 article about a Yemen bomb plot, agents had sought the same reporters’ sources for two other articles about terrorism.

In a separate case last year, F.B.I. agents asked the White House, the Defense Department and intelligence agencies for phone and e-mail logs showing exchanges with a New York Times reporter writing about computer attacks on Iran. Agents grilled officials about their contacts with him, two people familiar with the investigation said.

And agents tracing the leak of a highly classified C.I.A. report on North Korea to a Fox News reporter pulled electronic archives showing which officials had gained access to the report and had contact with the reporter on the day of the leak.

The emerging details of these and other cases show just how wide a net the Obama administration has cast in its investigations into disclosures of government secrets, querying hundreds of officials across the federal government and even some of their foreign counterparts.

The result has been an unprecedented six prosecutions and many more inquiries using aggressive legal and technical tactics. A vast majority of those questioned were cleared of any leaking.

On Thursday, President Obamaordered a review of Justice Department procedures for leak investigations, saying he was concerned that such inquiries chilled journalists’ ability to hold the government accountable. But he made no apology for the scrutiny of the many officials whose records were searched or who had been questioned by the F.B.I.

“He makes the case that we have 18-year-olds out fighting wars and acting like adults, and we have senior administration officials quoted in stories acting like children,” said Tommy Vietor, a former National Security Council spokesman. Mr. Obama and top administration officials say some leaks put Americans at risk, disrupted intelligence operations and strained alliances.

Some officials are now declining to take calls from certain reporters, concerned that any contact may lead to investigation. Some complain of being taken from their offices to endure uncomfortable questioning. And the government officials typically must pay for lawyers themselves, unlike reporters for large news organizations whose companies provide legal representation.

“For every reporter that is dealing with this, there are hundreds of national security officials who feel under siege — without benefit of a corporate legal department or a media megaphone for support,” said a former Obama administration official. “There are lots of people in the government spending lots of money on legal fees.”

When an agency spots classified information in the news, officials file what is called a “Crimes Report” with the Department of Justice answering 11 standard questions about the leak, including the effect of the disclosure “on the national defense.”

F.B.I. agents then set out to find the leaker, a process that has become far easier in recent years as e-mail and other electronic records have proliferated.

As it turns out, there hasn’t been very much to show for this news clamping down on leaks that we’ve seen over the past several years:  (Emphasis mine)

Of the thousands of leaks that have played a crucial role in the ebb and flow of public discourse over the years, only about a dozen resulted in criminal charges against those accused of disclosing the information, according to David Pozen, a law professor at Columbia University.

But the government’s willingness to go after journalists’ e-mail and phone records without warning their news organizations — a practice that allows them to challenge the demand in court — appears to be increasing.

“There seems to have been a shift in attitude,” said Steven Aftergood, who directs a project on government secrecy for the Federation of American Scientists. “The latest revelations indicate that reporters’ communications are now fair game.”

By contrast with the secret subpoena for A.P. and Fox News records, prosecutors openly demanded phone records from two Times journalists nine years ago — and set off a court battle.

A prosecutor sought the reporters’ phone records to see whether anyone had tipped them off about a planned seizure of assets from an Islamic charity in Illinois suspected of helping to finance Al Qaeda. Prosecutors argued that a call from one of the reporters to charity officials had led them to shred documents before a federal raid on their offices.

The Times balked, saying the work of the reporters, Philip Shenon and Judith Miller, was protected under the First Amendment. After a federal judge ruled for the newspaper, the Bush administration appealed, eventually winning the case and obtaining the records — two years after the subpoena. No charges resulted.

It is not clear how often the government has obtained reporters’ communications records. In the North Korea case, the F.B.I. obtained call logs for five lines related to Mr. Rosen, and — as in the A.P. investigation — notified the news organization only afterward. That was nearly three years ago, a law enforcement official said. But the subpoena’s existence became public only this month, when unsealed court papers also showed the government had obtained the warrant for Mr. Rosen’s e-mails. F.B.I. agents also studied one official’s entrances and exits from the State Department, obtained his Yahoo e-mail information and even searched his hard drive for deleted files, documents unsealed this month showed.

Indeed, the main argument that many have raised in the weeks since Associated Press and James Rosen stories became public is the damage that this aggressive pursuit of leaks is having on the practice of journalism and, most specifically, the ability of the press to uncover stories about what is going on inside our government. Leaving aside for the moment the serious questions raised by the FBI monitoring journalists, the aggressive nature in which the Obama Administration questions people inside the government at the slightest indication of a “leak” has undoubtedly had an impact on the willingness of government employees to talk to reporters about even non-classified matters for fear that they’ll be dragged in and questioned in a leak investigation. Indeed, over the past several weeks many Washington reporters have noted anecdotally that it has become far more difficult to get information out of government employees than it used to be, even long time reliable sources of information are clamming up and the information that comes out of the Obama Administration has become tightly controlled by the White House Press Office. That may be good or the Administration, but I’m not so sure that it’s good for the American people.

Washington Post Vice-Preisdent Leonard Downie is among those who contend that the Administration’s aggressive pursuit of leaks is undermining investigative journalism and also points out the extent to which the Administration’s actions have not matched the rhetoric the President become famous for during his first campaign regarding openness and transparency:

Every administration I remember has tried to control its message and manage contacts with the media. As a senior editor for more than a quarter-century, I frequently received complaints from administrations of both parties about coverage they considered unfavorable, along with occasional and mostly empty threats to cut off access. Journalists who covered the George W. Bush administration said they encountered arrogant attitudes toward the press but were usually able to engage knowledgeable officials in productive dialogue.

But reporters covering the Obama administration say more and more officials will no longer talk at all and refer them to uncommunicative or even hostile and bullying press aides. “The White House doesn’t want anyone leaking,” said one senior Washington correspondent who, like others, described a tight, difficult-to-penetrate inner circle that controls the administration’s decisions and micromanages its message. “There are few windows on decision-making and governing philosophy. There is a perception that Obama himself has little regard for the news media.”

Continuing what worked so successfully during two presidential election campaigns, Obama and his administration have instead engaged citizens directly through social media, friendly bloggers, radio and video. It amounts to the White House reporting on itself, presenting an appearance of greater openness while avoiding penetrating questions from journalists who have the knowledge and experience to do meaningful accountability reporting. The administration’s media manipulation extends even to photography: Professional photojournalists are banned from many White House events and presidential activities; only approved images of Obama taken by a White House photographer are supplied to the news media.

Most Americans may not care much about the Obama administration’s openness to the news media or the potential damage to the First Amendment and government accountability resulting from its aggressive war on leaks. But as the administration copes with second-term governing challenges, real national security threats and darkening clouds of scandal, its credibility will become increasingly important to the president’s legacy. It is not too late for Obama’s actions to match his rhetoric.

Kevin Drum isn’t convinced, though:

The two cases that have everyone exercised at the moment mostly seem to be justified. As Cheryl Rofer points out, Stephen Jin-Woo Kim basically acted like an idiot, apparently leaking information to James Rosen without even quite realizing how damaging it was. There’s no government in the world that would tolerate that kind of behavior from someone in a sensitive position who knew the rules. We know less about the AP case, but it certainly seems to have involved the release of information (the existence of an Al Qaeda mole) that the government had a legitimate reason for keeping secret.

Does this mean the government should be able to pursue these cases by getting warrants for reporters’ phone records? I think the bar should be very, very high for that. Should the government be able to prosecute reporters for publishing classified information? I’d say the bar should be almost insurmountable for that. Even making the suggestion in a warrant application, as they did in the case of Rosen, is going too far for my taste.

Nevertheless, the government has an obvious interest in trying to keep its intelligence operations secret. The existence of an Al Qaeda mole and the existence of high-level sources within North Korea are both classic cases of this. There’s no whistleblowing or government misconduct here. When those kinds of secrets are blown, the feds legitimately want to know which nitwit is doing it. Sometimes that may justify getting a warrant to look at journalists’ phone records. The rules for this ought to be more stringent than they are, but the First Amendment isn’t a magic pass here.

I think Drum goes a bit far here, because I know of very few people who are saying that the First Amendment trumps the government’s need to keep some information secret in all cases. Obviously, there is a strong government interest in making sure that information that is properly classified remains so and that people who leak that information face the legal consequences the law allows, especially when that leak endangers American national security or results in the revelation of information that puts in danger the lives of American soldiers or agents, or those people in other countries who may be assisting us. This is why there remains so much troubling about the entire Wikileaks concept and the Bradley Manning case. In those situations, gigabytes of classified information was made public without any regard for the consequences of doing so. Manning’s supporters like to refer to him as a whistleblower, but whistleblowers are typically people who are revealing discrete pieces of information regarding instances of wrongdoing. Manning didn’t do that, he stole what are by some accounts terabytes of classified data without regard for what information was contained therein, or what the consequences would be of making it public. That’s not whistleblowing.

At the same time, though, there are legitimate First Amendment concerns implicated by the Obama Administration’s aggressive leak prosecution strategy that ought not be ignored. For one thing, there’s the overarching question of whether the information in question is actually properly classified. As we’ve noted here at OTB many times over the years, there has been a growing tendency in the government to stamp “classified” or “Top Secret” on documents without much regard or whether or not that is actually an appropriate classification. Indeed, over the years, investigations have found that newspaper and magazine articles that end up getting inserted into a file that is otherwise classified and somehow end up being considered classified themselves even though they are in the public domain. An additional consideration is the government’s well-known, and documented, habit of using the classification system to keep secret information that is embarrassing  In many cases, revealing this information would not do any real harm to American interests or intelligence resources, but it would case damage to the powers-that-be, whomever they happen to be at the moment. For these reasons among others, it’s not necessarily always a bad thing when “classified” information is made public. Quite often, the American public needs to know what is being, or has been done, in its name, and investigative journalists who ferret out these stories are performing a public service when they do so. Creating situations where it becomes more difficult for that information to be made public is not in the interests of the American people.

Politically, it’s hard to call the issues surrounding the Obama Administration’s increased leak prosecutions a “scandal.” After all, how can enforcing existing law really be a scandal? Moreover, on more than one occasion when classified information has appeared in a news report, Republican politicians have criticized the Administration for allowing classified information becoming public and calling upon it to track down who may have been responsible for revealing it. Indeed, it became something of a campaign issue during the 2012 election. That’s why it strikes me that there’s something somewhat hypocritical about Republican politicians now criticizing the Administration for doing exactly what they had called upon it to do.

Nonetheless, that doesn’t mean that there isn’t something serious about this story that ought to concern all of us. As I noted above,  investigating leaks of classified information is an appropriate government function. However, as with any law enforcement action there is a point at which the government has gone too far, and this seems especially true when the power of the state begins to create a chilling effect on the press and those who would talk to them. Josh Gerstein at Politico argues that the leaks story is one that has staying power, and one that could pose difficulties for the Obama Administration in the coming months. I’m not so sure about that personally. On the one hand, we can likely guarantee that it’s a story we’ll continue to hear about because it hits the news media directly. On the other, I’m not certain, that the American people will care about it enough. I hope they do, because the very future of a government that is answerable to the people may be at stake.