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The Obama Administration and the Press - Committee to Protect Journalists (Part 2)
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The Obama Administration and the Press - Committee to Protect Journalists (Part 2)
The Obama Administration and the Press - Committee to Protect Journalists (Part 2)

The Obama Administration and the Press

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. 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.

“As with the AP subpoenas, this search is overbroad and has a chilling effect on reporters,” stated a Wall Street Journal editorial that expressed a view widespread among journalists. “The chilling is even worse in this case because Mr. Rosen’s personal communications were subject to search for what appears to be an extended period of time. With the Fox News search following the AP subpoenas, we now have evidence of a pattern of anti-media behavior. … The suspicion has to be that maybe these ‘leak’ investigations are less about deterring leakers and more about intimidating the press.”

In the midst of the controversy, Obama said in a major speech on national security at the National Defense University on May 23 that he was “troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.” He said, “Journalists should not be at legal risk for doing their jobs,” even though his administration would still aggressively investigate government officials “who break the law” by leaking classified information.

The president asked Holder “to review existing Department of Justice guidelines governing investigations that involve reporters.” And Obama called on Congress to revive and pass a federal “shield law”—similar to those in 40 states and the District of Columbia—that would spell out defenses for journalists facing legal efforts to uncover their confidential sources and reporting contacts.

Two months later, after a series of Justice Department meetings with news executives, reporters, and media lawyers, Holder announced Obama-approved revisions to the Justice guidelines that somewhat narrowed the circumstances under which federal investigators could subpoena and seize communications records of news organizations or reporters. News organizations would be given advance notice of such subpoenas unless the attorney general personally determined “for compelling reasons” that it would pose a clear and substantial threat to an investigation. Search warrants could be issued for a reporter’s phone and e-mail records only if the journalist was the focus of a criminal investigation for conduct not connected to ordinary newsgathering.

“Members of the news media will not be subject to prosecution based solely on newsgathering activities,” the Justice Department said. It also would explore “ways in which intelligence agencies themselves, in the first instance, can address information leaks internally through administrative means, such as the withdrawal of security clearances and imposition of other sanctions,” rather than criminal prosecutions.

Media lawyers who negotiated with Justice welcomed the revisions to the guidelines as significant progress, despite remaining exceptions. The reactions of journalists were mixed. Times reporter Sanger told me that the revisions were “just formalizing what was observed in past administrations. The guidelines worked pretty well until the Obama administration came in.”

Even as the Justice Department was working with the news media on revising the guidelines, it was using the Associated Press reporters’ phone records it had secretly seized to identify and convict a former FBI agent for the leak about the covert CIA operation in Yemen. On September 23, Justice announced that Donald J. Sachtleben, a former FBI bomb technician working as a contractor for the bureau, had agreed to plead guilty to “unlawfully disclosing national defense information relating to a disrupted terrorist plot” in Yemen. “Sachtleben was identified as a suspect in the case of this unauthorized disclosure” to a reporter, according to the announcement, “only after toll records for phone numbers related to the reporter were obtained through a subpoena and compared to other evidence collected during the leak investigation.” Sachtleben agreed to a 43-month prison sentence in the leak case, in addition to a 97-month sentence for his guilty plea in an unrelated child pornography case.

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U.S. Senators South Carolina Republican Lindsey Graham, right, and Charles Schumer, a New York Democrat, proposed a new shield law to protect journalists from having to identify their sources. (Reuters/Claro Cortes IV)

Focusing on what it called the defendant’s “egregious betrayal of our national security” in the AP case, the Justice announcement contained another strong warning to potential leakers of classified information to the news media. “This prosecution demonstrates our deep resolve to hold accountable anyone who would violate their solemn duty to protect our nation’s secrets and to prevent future, potentially devastating leaks by those who would wantonly ignore their obligations to safeguard classified information,” it stated. “With these charges, a message has been sent that this type of behavior is completely unacceptable and no person is above the law.”

After reiterating that the seized phone records of AP reporters had enabled the FBI to identify Sachtleben, the statement added, “The FBI will continue to take all necessary steps to pursue such individuals who put the security of our nation and the lives of others at risk by their disclosure of sensitive information.” While it didn’t address the breadth and secrecy of the AP subpoena, Justice appeared to be vowing that it would, when it deemed necessary, make aggressive use of the national security exceptions in both its revised guidelines and a proposed federal shield law for reporters.

Weeks before this announcement, a supporter of a federal shield law, Sen. Ron Wyden, the Oregon Democrat, expressed his concerns about targeting reporters’ phone records to discover their sources. “As a member of the Senate Intelligence Committee for a decade now, I won’t take a back seat to anybody in protecting genuine national security information, but that doesn’t mean that everything done in the name of stopping leaks is a good public policy,” Wyden told me. “Some of the tactics the Justice Department has used in recent leaks investigations have been overly broad. Seizing phone records of journalists is in effect treating journalists as accomplices in committing crimes.”

Obama and Holder have both expressed support for congressional passage of a federal reporter shield law. A compromise bill approved by the Senate Judiciary Committee on September 12 would make it more difficult for the government in federal investigations to compel reporters to reveal their sources except in “classified leak cases when information would prevent or mitigate an act of terrorism or harm to national security.” It would require a judge, not the attorney general, to approve subpoenas for reporters’ records or sources.

A potential sticking point for the shield law had been how Congress should define who is a journalist in this participatory digital media era. The compromise language in the Senate bill would cover anyone who had an “employment relationship” with a news organization for at least one year in the past 20 years, or three months in the previous five years; student journalists; anyone with a “substantial track record” of freelance journalism in the previous five years; and anyone else “whom a federal judge has decided should be able to avail him or herself of the protections of the privilege, consistent with the interests of justice and the protection of lawful and legitimate newsgathering activities.” Journalists and press freedom advocates are divided over whether the federal government should define who is a journalist at all, even though many state shield laws already do. They are concerned about any restrictions on whose journalism would be protected.

“You give us a definition of what a journalist is, you define exemptions, you’re painting us into a corner,” Scott Armstrong, an independent investigative journalist and the executive director of the government transparency advocate Information Trust, said of the reporter shield legislation at a Newseum Institute panel discussion in Washington in September. Armstrong said that, as a First Amendment absolutist, he opposes any congressional legislation governing the press. He added that the national security exemption means that the legislation “won’t protect national security reporters. Federal agencies can still investigate us.”

But others on the panel argued that a shield law would provide some needed protection from federal government interference for countless journalists covering other subjects across the country. “This shield law could keep a lot of reporters out of court,” said Kevin Goldberg, legal counsel for the American Society of News Editors.

Congressional passage of a federal shield law in some form would “not be a cure-all, but helpful,” Michael Oreskes of the AP told me, if it is “a statement that the act of reporting and finding sources is as important as the constitutional right to publish.”

Surveillance revelations deepen the chill
While the fate of the shield legislation remained uncertain, the Obama administration, Congress, and the American people reacted to Snowden’s revelations about the NSA’s extensive secret collection and surveillance of American and foreign telephone and e-mail traffic. On June 5, the Guardian and The Washington Post began publishing what became a steady stream of stories, documents, and exhibits from the large amount of highly classified information Snowden had given separately to Post reporter Barton Gellman and Guardian reporter Glenn Greenwald. Snowden was connected to them by documentary filmmaker Laura Poitras, who was developing a documentary about U.S. electronic surveillance, and who shared some reporting with the two journalists.

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A monitor in a Hong Kong shopping mall broadcasts news on the charges against Edward Snowden on June 22, 2013. (Reuters/Bobby Yip)

Snowden, while working as a Booz Allen Hamilton consultant for the NSA in Hawaii in the spring of 2013, downloaded a still-unknown amount of information about the NSA’s secret surveillance programs. He communicated with Gellman by encrypted e-mail and met secretly with Greenwald and Poitras in Hong Kong. Their stories revealed details of secret NSA operations that acquire, store, and search huge amounts of telephone call, text, and e-mail data from American telephone and Internet companies, under secret FISA court authorization, to find and track communications that might be tied to terrorist activity. The published documents also included the “black budget” for U.S. intelligence agencies, classified government charts illustrating how the NSA surveillance programs operate, and legal memos and FISA court decisions underpinning the programs.

Not long after publication began in The Post and the Guardian, Snowden publicly identified himself as the source of their information. When Gellman asked him at the time about his motive, Snowden said he had discovered an immense expansion of government electronic surveillance, which is “such a direct threat to democratic government that I have risked my life and family for it.”

On June 21, the Justice Department unsealed a criminal complaint, filed a week earlier, charging Snowden with several violations of the Espionage Act. The U.S. government began a wide-ranging effort to have him extradited to the United States, including revoking his passport. But Snowden eventually made his way from Hong Kong to Russia, where he was granted temporary asylum on August 1.

Greenwald and Poitras worked on his stories and her documentary in Brazil, expressing concern about the U.S. and allied governments’ using border security powers to harass and hamper them. Poitras, whose previous films were critical of U.S. anti-terrorism policies, had already been stopped and questioned and had her computers searched several times by the U.S. Customs and Border Patrol when re-entering the country in recent years. Greenwald’s partner, David Miranda, serving as a courier for him and the Guardian, was similarly detained and his equipment confiscated at Heathrow airport in London on his way back to Rio de Janeiro from Europe in mid-August.

That appeared to be part of an effort by British officials to stop or limit the Guardian’s publication of material from Snowden, which included U.S. government documents describing the NSA’s collaboration on electronic surveillance with its secretive British counterpart, Government Communications Headquarters (GCHQ). After threatening the use of Britain’s draconian Official Secrets Act, officials supervised destruction in the Guardian offices of computer hard drives containing some of the secret files obtained by Snowden, even though other copies remained in the U.S. and Brazil. Like The Washington Post, the Guardian continued to publish stories based on Snowden’s documents, and it began sharing some of them with The New York Times and the nonprofit investigative reporting group ProPublica, based in New York.

At this writing, no connection has been established between the NSA surveillance programs and the many leak investigations being conducted by the Obama administration—but the surveillance has added to the fearful atmosphere surrounding contacts between American journalists and government sources.

“There is greater concern that their communications are being monitored—office phones, e-mail systems,” Post reporter Chandrasekaran said. “I have to resort to personal e-mail or face to face, even for things I would consider routine.”

Journalists who aren’t worried about their communications being monitored should be; if not, they could be putting their sources at risk, said Oktavía Jónsdóttir, program director of the S.A.F.E. Initiative of the Washington-based nonprofit IREX, which advocates for independent media and civil society internationally.

“The key I think is whether journalists today can guarantee their sources anonymity, and at this point that is very difficult, but I will say, not impossible,” Jónsdóttir said. “Sources need to understand the risks they take, agree with the journalists how far they will go and then put ultimate trust in that individual’s ability to protect that information and ensure that even though the information may be compromised, the source is not.”

Washington Post national security reporter Dana Priest told me: “People think they’re looking at reporters’ records. I’m writing fewer things in e-mail. I’m even afraid to tell officials what I want to talk about because it’s all going into one giant computer.”

The work of foreign journalists could be especially vulnerable to surveillance by the NSA or other U.S. intelligence agencies, because they are legally authorized to monitor telephone and Internet communications of non-U.S. nationals. The German magazine Der Spiegel, citing documents from Snowden, reported in August that the NSA had hacked into internal communications of the international news organization Al-Jazeera. The Qatar-based broadcaster and the U.S. government have often been at odds since it broadcast videotaped statements by Osama bin Laden after the 9/11 attacks.

Peter Horrocks, director of global news at the BBC, said all journalists at the British broadcaster must now take training in information security. “The nature of their work means journalists are often in touch with organizations representing extremist viewpoints and sources whose identities must be protected, and the BBC is particularly concerned with protecting those journalists who are travelling and working in sensitive locations,” he said.

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Germans protest the U.S. National Security Agency's monitoring of international Internet traffic in Frankfurt on July 27, 2013. (Reuters/Kai Pfaffenbach)

The European Union opened an investigation in September “to determine the impact of [U.S.] surveillance activities on EU citizens,” including journalists. In teleconferenced testimony to the European Parliament’s Civil Liberties Committee, Guardian editor Alan Rusbridger said that Miranda’s airport detention and the destruction of NSA materials at the Guardian could be “chilling and obstructive to journalism.” He called for EU oversight of such actions by member governments, adding, “Please find ways to protect journalism.”

Five days after Snowden was charged, Barton Gellman was asked in a panel discussion at the Center for Strategic and International Studies in Washington why he and The Post had published stories based on classified documents from Snowden. “Congress passes a vague law and a secret court makes secret rulings,” Gellman said. “Where should the line be between intelligence gathering and privacy? We haven’t had that discussion.”

The discussion started by Snowden’s revelations quickly grew into a national debate. Members of Congress complained publicly that they had been kept in the dark or misled about the nature and dimensions of the NSA programs. Clapper, the director of national intelligence, was forced to apologize for falsely denying in earlier testimony to Congress that the NSA had secretly collected data about the telephone calls of millions of Americans. A bipartisan group of 26 senators wrote to Clapper to demand more information about the NSA surveillance, which they said “raises serious civil liberties concerns and all but removes the public from an informed national security and civil liberties debate.” Two judges of the secret FISA court gave unprecedented, if brief, statements about how it worked to The Washington Post. Senate Intelligence Committee chairwoman Dianne Feinstein wrote an opinion article in The Post defending the NSA surveillance as a necessary counterterrorism tool, while promising to work in Congress to make changes “to increase transparency and improve privacy protections.”

In July, as more members of Congress expressed skepticism about the NSA programs and what they knew about them, several of them introduced bills to rein in the programs. On July 24, a bipartisan plan to defund the NSA’s telephone data collection program was defeated by just seven votes in the House of Representatives.

The Obama administration responded by explaining for the first time the legal rationale, execution and oversight of the secret NSA surveillance programs. The president declassified and ordered the release of many previously secret government reports, court decisions, and other documents, including the total number of surveillance orders issued each year to telecommunications companies. At a news conference on August 9, the president said he would ask Congress to tighten privacy protections in the Patriot Act authorization of the NSA programs and add an advocate for privacy rights to the secret FISA court proceedings that govern the NSA programs, in which only the government has been represented. He also created a panel to assess the phone records collection programs and suggest changes by the end of the year.

Adding to his administration’s roster of government-run information sites, Obama announced that the 16-agency U.S. Intelligence Community was launching its own website, “IC on the Record.” The website posts statements from intelligence agencies, responses to what they characterize as erroneous press reports, and copies of declassified documents, which were dramatically labeled on the website with illustrations of opened locks.

Though the White House is taking credit for this welcome new openness about the NSA’s activities, the fact is that the Obama administration—and the Bush administration before it—should have been more open and accountable for the NSA’s surveillance activities in the first place. It seems highly unlikely this new transparency would have begun without Snowden’s disclosures. That would appear to make him a whistle-blower, although he obviously broke laws governing access to highly classified information and his own security clearance, and the full extent, distribution and potential national security impact of the information he obtained is still not known.

In November, the president signed the congressionally passed Whistle-Blower Act of 2012, along with a presidential policy directive aimed at protecting from retaliation all government whistle-blowers, including employees—but not contractors—in intelligence agencies. However, the administration won an appellate court decision in August that takes away from the many federal employees in designated “national security sensitive” positions the right to appeal personnel actions by their agencies, which could include retaliation for whistle-blowing. And the administration has insisted that government whistle-blowers first raise their issues internally, rather than to outsiders, including the press.

Senator Wyden told me that he has studied the intelligence agencies’ personnel rules and found that whistle-blowers “have to go first to the people perpetrating the problems they want to expose, before they can come to Congress, for example. There are a mountain of barriers and hurdles for intelligence agency whistle-blowers,” he said.

“We have a president with two minds in regard to whistle-blowing,” said Angela Canterbury, director of public policy for the Project on Government Oversight. “He deserves credit for doing more than any other president, but there’s a different policy for classified information whistle-blowers.”

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The 16-agency U.S. Intelligence Community launched a new website following criticism that surveillance policies were not transparent. (CPJ)

When I asked deputy national security adviser Ben Rhodes about this, he said, “The president doesn’t like leaks of unauthorized information that can harm national security.” But not nearly all “unauthorized” or classified government information presents that danger. The Obama administration could do much more to reduce unnecessary classification. “The system is bent deeply in the direction of over-classification of information,” Senator Wyden said. “If done properly to protect only genuine national security information, it would be easier to protect government secrets.” He said it seemed as if classification were being used more to protect people from political embarrassment.

“Even when acting in good faith, officials are liable to over-classify,” said open government advocate Steven Aftergood. “There is no review of classification decisions.”

Obama directed government officials in a December 2009 executive order not to classify information if they had significant doubts about whether it needed to be secret. The number of newly classified documents has declined somewhat since then, according to the White House, and declassification of older documents has accelerated. But the administration has yet to take action on more far-reaching recommendations to reduce over-classification made to the president in a December 6, 2012, report by the congressionally authorized Public Interest Declassification Board (PIDB). It concluded that “present practices for classification and declassification of national security information are outmoded, unsustainable and keep too much information from the public.”

The administration’s accelerated cyberwarfare activities, revealed in news reports of documents provided by Snowden, were cited by The Times’sSanger as an example of information the government should have declassified in some form before it was leaked. “I think there is a public interest in revealing things like that to alert the American people that an entirely new class of weapons to which the U.S. would be vulnerable were being deployed by the U.S.—to start public debate, even if the details of it are classified.”

In an April 23, 2013, open letter, 30 government transparency organizations called on the president “to promptly establish and provide active White House leadership for a Security Classification Reform Steering Committee” to push government agencies to implement the PIDB recommendations “to help correct what you have called ‘the problem of over-classification.’” The groups urged that the White House “take ownership of the reform effort.”

The White House and the Justice Department should also vigorously enforce the directive they issued on the president’s first full day in office, ordering government agencies to respond to Freedom of Information Act requests “promptly and in a spirit of cooperation.” It directed that information should not be withheld merely because “public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.” The default response to information inquiries, with or without formal FOIA requests, was supposed to be disclosure.

Instead, reporters and open government advocates told me that their FOIA requests too often faced denials, delays, unresponsiveness or demands for exorbitant fees, with cooperation or obstruction varying widely from agency to agency. Government transparency advocate Danielle Brian of POGO told me that, while “non-intelligence parts” of the Pentagon were responsive to information requests, many other parts of the Obama administration—especially the State Department, Agency for International Development, and the Environmental Protection Agency—were “off the charts bad on FOIA.”

An Associated Press analysis, published in March, found that “more often than it ever has,” the Obama administration “cited legal exceptions to censor or withhold the material” and “frequently cited the need to protect national security and internal deliberations.” Some of the administration’s new government information policies also contain vague privacy exceptions that could be used to hide records crucial to accountability reporting about such subjects as health care payments, government subsidies, workplace accidents, or detentions of terrorism suspects.

A Washington-based consortium of more than 80 open government advocacy organizations called OpenTheGovernment.org is working on recommendations to the Obama administration to make the FOIA work better for the press and the public. They include reducing the number and breadth of exemptions used to withhold requested information, creating an effective process for appealing and overturning denials of information, reforming fee systems in federal agencies, and streamlining and centralizing the federal FOIA system, as some other countries have done.

When I asked Lucy Dalglish what she thought the Obama administration should do to fulfill the president’s promises of transparency and open government, her list included: Keep fewer secrets, improve the FOIA process, be open and honest about government surveillance, and build better bridges with the press, rather than trying to control or shut it out.

With so much government information digitally accessible in so many places to so many people, there are likely to be more Mannings and Snowdens among those who grew up in a digital world with blurred boundaries between public and private, shared and secret information. That makes access by the press to a range of government sources of information and guidance more important than ever.

“Closing doors to reporters is hurting themselves,” Washington Post journalist and author Bob Woodward told me, “because less responsible news organizations will publish or broadcast whatever they want. In the end, it does not hurt the press; it can damage national security.”

Journalists from other countries pointed out that hostility by the U.S. government to the news media can be damaging to press freedom elsewhere, contrary to the openness the Obama administration has been advocating internationally. Mohamed Elmenshawy, the widely published Egyptian columnist and director of regional studies at the Middle Eastern Institute in Washington, said, “As journalists from Third World countries, we look at the U.S. as a model for the very things we want: more freedom of expression and professionalism. We are fighting for free news and not to be threatened, and when we see some issues here regarding regulating news and reporting, it is bad news for us because usually our governments, especially undemocratic ones, use this as an example in a very negative way.”

President Obama is faced with many challenges during his remaining years in office, the outcome of which will help shape his legacy. Among them is fulfilling his very first promise—to make his administration the most transparent in American history amid national security concerns, economic uncertainty, political polarization, and rapid technological change. Whether he succeeds could have a lasting impact on U.S. government accountability and on the standing of America as an international example of press freedom.

Leonard Downie Jr., vice president at large and former executive editor of The Washington Post, is the Weil Family Professor of Journalism at Arizona State University’s Walter Cronkite School of Journalism and Mass Communication. He is a founder and a current director of Investigative Reporters and Editors and the author of five books.

Sara Rafsky, Americas research associate for the Committee to Protect Journalists in New York, contributed to this report.

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10-11-2013 11:56 PM
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