Instead of providing greater access for reporting by knowledgeable
members of the press, Compton noted, the Obama White House produces its
own short newscast, “West Wing Week,” which it posts on the White House
website. “It’s five minutes of their own video and sound from events the
press didn’t even know about,” she said.
“When you call the White House press office to ask a question or seek
information, they refer us to White House websites,” said Chris
Schlemon, Washington producer for Britain’s Channel 4 television news
network. “We have to use White House website content, White House videos
of the president’s interviews with local television stations and White
House photographs of the president.”
The Obama administration is using
social media “to end run the news media completely,” Sesno at George
Washington University told me. “Open dialogue with the public without
filters is good, but if used for propaganda and to avoid contact with
journalists, it’s a slippery slope.”
Brushing off such concerns as special pleading from the news media, a
senior administration official told me that White House videos of
otherwise closed meetings, for example, provide the public with “a net
increase in the visibility of these meetings.” Several reporters told me
that the White House press office and public affairs officials in many
government agencies often don’t respond to their questions and interview
requests or are bullying when they do. “In the Obama administration,
there is across-the-board hostility to the media,” said veteran
Washington correspondent and author Josh Meyer, who reports for the
Atlantic Media national news website Quartz. “They don’t return repeated phone calls and e-mails. They feel entitled to and expect supportive media coverage.”
Reporters and editors said they often get calls from the White House
complaining about news content about the administration. “Sometimes
their levels of sensitivity amaze me—about something on Twitter or a
headline on our website,” said Washington Post Managing Editor Kevin Merida.
“The Obama people will spend an hour with you, off the record,
arguing about the premise of the story,” said Josh Gerstein, who covers
the White House and its information policies for Politico. “If the story is basically one that they don’t want to come out, they won’t even give you the basic facts.”
Eric Schmitt, national security correspondent of The New York Times,
told me: “There’s almost an obligation to control the message the way
they did during the campaign. More insidious than the chilling effect of
the leaks investigations is the slow roll or stall. People say, ‘I have
to get back to you. I have to clear it with public affairs.’”
“They’re so on message,” said Channel 4’s Schlemon. “I thought Bush was on message, but they’ve taken it to a whole new level.”
White House under pressure to stop leaks
As this information-control culture took root after Obama entered the
White House in January 2009, his administration also came under growing
pressure from U.S. intelligence agencies and congressional intelligence
committees to stem what they considered an alarming accumulation of
leaks of national security information. According to a New York Times
story this summer, Obama’s first director of national intelligence,
Dennis C. Blair, noted that during the previous four years 153 national
security leaks had been referred by the intelligence agencies in “crime
reports” to the Justice Department, but that only 24 had been
investigated by the FBI, and no leaker had yet been prosecuted in those
investigations.
“According to Mr. Blair,” The Times reported,
“the effort got under way after Fox News reported in June 2009 that
American intelligence had gleaned word from within North Korea of plans
for an imminent nuclear test.” Blair told The Times that he and
Attorney General Eric H. Holder Jr. then coordinated a more aggressive
approach aimed at producing speedy prosecutions. “We were hoping to get
somebody and make people realize that there are consequences to this and
it needed to stop,” Blair told The Times. “It was never a
conscious decision to bring more of these cases than we ever had,”
Matthew Miller, Holder’s spokesman at the time, told me this summer. “It
was a combination of things. There were more crime reports from the
intelligence agencies than in previous years. There was pressure” from
Capitol Hill, where Holder, Blair and other administration officials
“were being harangued by both sides: ‘Why aren’t leakers being
prosecuted? Why aren’t they being disciplined?’”
“Some strong cases,” inherited from the Bush administration, “were
already in process,” Miller said. “And a number of cases popped up that
were easier to prosecute” with “electronic evidence,” including
telephone and e-mail records of government officials and journalists.
“Before, you needed to have the leaker admit it, which doesn’t happen,”
he added, “or the reporter to testify about it, which doesn’t happen.”
Leak prosecutions under Obama have been “a kind of slap in the face,”
said Smith of the Center for Public Integrity. “It means you have to
use extraordinary measures for contacts with officials speaking without
authorization.”
Use of Espionage Act gathers steam
The first Obama administration prosecution for leaking information
popped up quickly in April 2009, when a Hebrew linguist under contract
with the FBI, Shamai K. Leibowitz, gave a blogger classified information
about Israel. The administration has never disclosed
the nature of the information, the identity of the blogger, or the
government’s evidence in the relatively little-noticed case. Leibowitz
pleaded guilty in May 2010, and was sentenced to 20 months in prison for
a violation of the 1917 Espionage Act. It was the Obama
administration’s initial use of a law passed during World War I to
prevent spying for foreign enemies.
The campaign against leaks then gathered steam with Espionage Act
prosecutions in two of the investigations inherited from the Bush
administration.
In the first, NSA employee Thomas Drake was indicted on April 14, 2010, on charges of providing information to The Baltimore Sun
in 2006 and 2007 about spending and management issues at the NSA,
including disagreements about competing secret communications
surveillance programs. Drake gave information to Siobhan Gorman, then a Sun
reporter, including copies of documents that, in his view, showed the
NSA had wrongly shelved a cheaper surveillance program with privacy
safeguards for Americans in favor of a much more costly program without
such safeguards. Drake and two of his NSA colleagues believed they were
whistle-blowers who had first voiced their concerns within the NSA and
to a sympathetic congressional investigator, to no avail. Gorman’s stories in the Sun
angered government officials, including Gen. Michael Hayden, who was
the NSA director when Drake objected to Hayden’s decision to switch the
communications surveillance programs.
At the time when the Sun was publishing Gorman’s stories, the Bush administration’s investigation of the 2005 New York Times
story about NSA warrantless communications surveillance had not found
any leakers to prosecute. Apparently Drake, his NSA colleagues, and the
congressional investigator to whom Drake had turned then became the
focus of that investigation, even though they were never identified as
sources for The Times. The homes of the other three—former NSA
officials William Binney and J. Kirk Weibe and House Intelligence
Committee staff member Diane Roark—were raided by armed federal agents
on July 26, 2007. The raids frightened and angered them, but they were
not prosecuted.
However, when Drake’s home was searched four months later, federal
agents found copies of documents about the NSA programs that were the
subjects of The Baltimore Sun stories. Drake volunteered to
investigators that, acting as a whistle-blower, he had sent copies of
documents and hundreds of e-mails to Sun reporter Gorman. Only
after the Obama administration took office more than a year later, and
the Justice Department became more aggressive in prosecuting leakers,
was Drake indicted on 10 felony counts, including violations of the
Espionage Act, for “willful retention of national defense information”
and “making false statements” when he insisted to federal agents that
the documents he had copies of were not secret.
Eventually, Drake’s lawyers and supporters showed that most of the
information at issue was not classified or, as former Justice spokesman
Miller told me, “other officials had been talking about the same
things.” In June, as the government’s case “fell apart,” in Miller’s
words, the federal prosecutor agreed not to seek a prison sentence for
Drake in return for his guilty plea to the misdemeanor crime of misusing
the NSA’s computer system. When Judge Richard D. Bennett sentenced
Drake in Federal District Court to a year’s probation and 240 hours of
community service, he said it was “unconscionable” that Drake and his
family had endured “four years of hell” before the government dismissed
its 10-count felony indictment. Drake, who was forced to resign from the
NSA, now works in an Apple computer store.
Former NSA director Hayden told me that, despite his differences with
Drake, the employee should never have been prosecuted under the
Espionage Act. “He should have been fired for unauthorized meetings with
the press,” Hayden said. “Prosecutorial overreach was so great that it
collapsed under its own weight.”
Whatever his role in the NSA’s internal rivalries at the time, Drake
appears to be a whistle-blower whose information about the secretive
agency’s telecommunications surveillance methods should have resulted in
greater government accountability at the time, rather than a criminal
prosecution for spying.
Who is a whistle-blower?
In the second investigation inherited from the Bush administration,
former CIA officer Jeffrey Sterling was indicted on Dec. 22, 2010, and
arrested on Jan. 6, 2011, on charges of providing New York Times reporter James Risen with extensive information about a failed CIA effort to sabotage Iran’s nuclear program. The Times never published a story about it, but the information appeared to be the basis for a chapter in Risen’s 2006 book, State of War. Sterling, who is black, had unsuccessfully sued the CIA for discrimination after he lost his job there.
Years of communications records for the two men were subpoenaed and
seized during the government’s investigation—and itemized in Sterling’s
indictment. They showed dozens of telephone calls and e-mails between
Sterling and Risen, beginning in 2002, when Risen wrote in The Times
about Sterling’s allegations of racial discrimination when he worked on
the CIA’s Iran task force. 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.
“Jeffrey Sterling is not a whistle-blower,” Miller, the former
Justice Department spokesman, insisted to me, even though Sterling,
whatever his motive, apparently was knowledgeable about significant
problems plaguing the CIA at the time. “He was fired for cause. He went
to court and the case was thrown out. No waste, fraud, or abuse was
involved.”
This is a disturbing distinction that the Obama administration has
made repeatedly. Exposing “waste, fraud and abuse” is considered to be
whistle-blowing. But exposing questionable government policies and
actions, even if they could be illegal or unconstitutional, is often
considered to be leaking that must be stopped and punished. This greatly
reduces the potential for the press to help hold the government
accountable to citizens.
Beginning in early 2008, the Justice Department repeatedly tried to
subpoena Risen to testify against Sterling in what has become a
long-running legal battle closely watched by journalists and media
lawyers. In support of the latest subpoena, filed in April 2010, Justice
argued that “James Risen is an eyewitness to the serious crimes with
which the grand jury charged Sterling.”
In July 2011, Judge Leonie Brinkema ruled in Federal District Court
that, while Risen must testify to the accuracy of his reporting, he
could not be compelled by the government to reveal his source. She
concluded that courts, dating back to the U.S. Supreme Court’s divided
ruling in Branzburg v. Hayes in 1972, had, in effect,
established a qualified privilege under the First Amendment that
protects reporters against identifying their sources if their need to
protect their sources’ identities to do their reporting outweighs the
government’s need for the reporters’ testimony to establish its case. It
was the first time a reporter had successfully invoked such a privilege
at the grand jury and trial stages of a federal prosecution.
The Obama administration appealed Brinkema’s decision, leaving the
Sterling trial in limbo. A coalition of 29 news organizations and
related groups came forward to support Risen, a two-time winner of the
Pulitzer Prize for journalism. In an appellate brief, they pointed to
the many significant national security and government accountability
news stories over the years that could not have been reported by the
press without confidential sources.
However, in July this year, a three-judge panel of the U.S. Court of
Appeals for the Fourth Circuit in Richmond, Va., reversed Brinkema’s
decision from two years earlier. A 2-to-1 majority ruled that the First
Amendment did not protect Risen from being forced to testify against his
source. Also citing Branzburg, Chief Judge William Byrd
Traxler wrote: “Clearly, Risen’s direct, firsthand account of the
criminal conduct indicted by the grand jury cannot be obtained by
alternative means, as Risen is without dispute the only witness who can
offer this testimony.”
Ominously, perhaps, Traxler added that Risen “is inextricably
involved in it. Without him, the alleged crime would not have occurred,
since he was the recipient of illegally-disclosed, classified
information.”
Dissenting, Judge Roger Gregory argued that the decision could be a
serious blow to investigative journalism. “The majority exalts the
interests of the government while unduly trampling those of the press,”
he wrote, “and, in doing so, severely impinges on the press and the free
flow of information in our society.”
Risen asked the full 15-judge appellate court to review the case, and
he vowed to go to jail rather than identify his source. Backed once
again by many press organizations, he also formally asked the Justice
Department to withdraw the subpoena. The Justice Department has
continued to press for enforcement of the subpoena by asking the full
appellate court not to hear further arguments in the case.
Manning case is a turning point
The Obama administration’s next prosecution originated with a June 11, 2009, story
on the Fox News network’s website. Fox News’s chief Washington
correspondent, James Rosen, reported that U.S. Intelligence had
discovered that North Korea was planning, in defiance of the United
Nations, to escalate its nuclear program and conduct another nuclear
weapons test. The Justice Department soon began a secret investigation,
which produced an August 19, 2010, felony indictment of Stephen Jin-Woo
Kim, a State Department contract analyst. He was charged with violating
the Espionage Act by giving classified intelligence information about
North Korea to Rosen, who was not named in the indictment.
The indictment of Kim contained just two bare-bones paragraphs—the
tip of an iceberg of secret investigations on which the Obama
administration and the press would collide resoundingly nearly three
years later.
Overshadowing the Kim case at the time was the arrest in May 2010 of
Manning, the Army private, in the most voluminous leak of classified
documents in U.S. history. Manning was an emotionally troubled young
soldier concerned about U.S. conduct in the wars in Iraq and
Afghanistan. Manning used computer access as an Army intelligence
analyst in Baghdad to download an enormous amount of classified
information and give it to the anti-secrecy group Wikileaks. The data
included more than 250,000 U.S. State Department diplomatic cables,
500,000 U.S. Army incident reports from the two wars, dossiers on
terrorist suspects detained at Guantánamo Bay, and videos of two
American airstrikes that killed civilians in Iraq and Afghanistan.
News media throughout the world published scores of stories based on
the documents obtained through Wikileaks during 2010 and 2011. The State
Department cables contained American diplomats’ unvarnished views of
numerous countries’ government and diplomatic activities. The military
logs detailed troubling issues, including civilian deaths, in waging the
wars in Iraq and Afghanistan. While news organizations did further
reporting for what they published, and decided to leave out some names
and other details after talking to government officials, Wikileaks
posted unredacted documents on its own website, exposing, among other
things, the identities of foreign nationals in contact with U.S.
embassies around the world.
Manning was eventually charged in a military court
with 22 offenses, including violations of the Espionage Act, and
pleaded guilty in February 2013 to 10 of the lesser charges of accessing
and communicating classified information. The government nevertheless
continued to pursue the prosecution, and Manning was convicted
by a military judge in July of the rest of the charges, except the most
serious offense under the Uniform Code of Military Justice—aiding the
enemy. In August, the court-martial judge, Col. Denise R. Lind,
sentenced Manning to 35 years in prison. With credit for time served
awaiting the trial and verdict, she could be eligible for parole in
seven years. It was a long sentence for leaking classified information,
as extensive as it was, to news media, rather than spying for a foreign
government.
The Manning case appears to have been another turning point. “After
Wikileaks, the administration got together and decided we’re not going
to let this happen again,” said Lucy Dalglish, who monitored
developments closely while director of the Reporters Committee for the
Freedom of the Press. “Prosecution under the 1917 Espionage Act is
almost their only tool,” she told me. “They’re sending a message. It’s a
strategy.”
Dalglish, now dean of the Philip Merrill College of Journalism at the
University of Maryland, along with Danielle Brian of the Project on
Government Oversight (POGO) and other longtime government transparency
advocates, met with President Obama in the Oval Office on March 28,
2011, to thank him for his frequent promises about transparency and
early actions on open government. They used the opportunity to explain
why they thought much more needed to be done. According to Brian’s written account
in the POGO blog the next day, the president seemed sympathetic to the
issues they raised, including the over-classification of government
information as secret.
But when Brian brought up “the current aggressive prosecution of
national security whistle-blowers” and the “need to create safe channels
for disclosure of wrongdoing in national security agencies,” she wrote,
“The president shifted in his seat and learned forward. He said he
wanted to engage on this topic because that may be where we have some
differences. He said he doesn’t want to protect the people who leak to
the media war plans that could impact the troops. He differentiated
these leaks from those whistle-blowers exposing a contractor getting
paid for work they are not performing.”
Dalglish told me there was a follow-up meeting at the White House in
June 2011, with national security journalists and lawyers from the
director of national intelligence, CIA, FBI and the Pentagon. But they
made little progress. “When the journalists said that in the past you
could negotiate with agencies” about national security information,
“there was no real response,” Dalglish recalled. When they asked, with
the Risen subpoena in mind, about a proposed federal shield law that
could protect reporters from being forced to identify their sources,
Dalglish said, the lawyers told them, “You can get a shield law, but
you’ve probably seen your last subpoena. We don’t need you anymore.”
Another leaker’s motives in question
On October 7, 2011, the Obama White House launched an ambitious new
effort to curb leaks. “Following the unlawful disclosure of classified
information by Wikileaks,” it announced,
“the National Security Staff formed an interagency committee to review
the policies and practices surrounding the handling of classified
information, and to recommend government-wide actions to reduce the risk
of a future breach.” An accompanying executive order from the president
established an Insider Threat Task Force to develop within a year “a
government-wide program for insider threat detection and prevention to
improve protection and reduce potential vulnerabilities of classified
information from exploitation, compromise, or other unauthorized
disclosure.”
Meanwhile, the administration launched another Espionage Act
prosecution. Former CIA officer John Kiriakou was indicted on April 5,
2012, on five felony counts accusing him of disclosing classified
information, including the names of two CIA agents, to freelance
journalist Matthew Cole and to New York Times reporter Scott
Shane. Kiriakou, who retired from the CIA in 2004, had led the team that
located and captured senior Al Qaeda operative Abu Zubaydah in 2002 in
Pakistan. He became a sought-after news source—and a bête noire for the
CIA—after a 2007 ABC News television interview in which he confirmed
that Zubaydah had been water-boarded during his interrogation. Kiriakou
said he believed the measure was necessary, legal, and effective, but
probably constituted torture that should not be used again.
Amid his many subsequent media appearances and contacts with
journalists, Kiriakou discussed a covert CIA agent with Cole, who, in
turn, discussed the agent with a researcher for defense lawyers for Al
Qaeda suspects detained at Guantánamo Bay. Later, Kiriakou confirmed to
Shane the identity of a former CIA officer, Deuce Martinez, who was
involved in the Zubaydah interrogation. Shane told me that Kiriakou had
showed him a non-CIA private business card for Martinez, whom Shane was
trying to locate. “Martinez had been undercover, but he had asked that
he no longer be, and he wasn’t,” said Shane, who wrote a detailed Times story about “enhanced interrogations” of terrorist suspects, which stated that Martinez had declined to be interviewed.
When government officials discovered that the Guantánamo defense
lawyers were identifying CIA witnesses to their clients’ interrogation,
the agency filed a crime report that prompted a Justice Department
investigation. A defense lawyer and a researcher, who had been targets
of the inquiry, were eventually cleared of any illegality. Instead, the
investigation turned into a criminal leaks case after investigators
seized scores of e-mails between Kiriakou and journalists. They revealed
Kiriakou as both Cole’s source of the identity of the covert CIA agent
and a frequent contact of Times reporter Shane. In a plea
bargain, Kiriakou admitted guilt on October 22, 2012, to a single count
of violating the Intelligence Identities Protection Act for giving the
covert CIA agent’s name to Cole. In return, the other charges, including
three counts of violating the Espionage Act, were dropped. Kiriakou was
sentenced to 30 months in prison.
Once again, there was disagreement about the leaker’s motivation in a
questionable espionage case. Kiriakou and his supporters characterized
him as a patriotic, if self-promoting, whistle-blower who exposed
abusive interrogation methods later condemned as torture, while none of
the government officials responsible for them had been punished.
However, Judge Brinkema said in sentencing Kiriakou, “this is not a case
of a whistle-blower” because of the seriousness of revealing the
identity of a covert intelligence officer.
In a statement to CIA employees the day after Kiriakou’s sentencing,
David H. Petraeus, then the CIA director, made clear the
administration’s intentions. “The case yielded the first successful
prosecution”—under the Intelligence Identities Protection Act—“in 27
years, and it marks an important victory for our agency, for our
intelligence community, and for the country,” Petraeus told them. “Oaths
do matter, and there are indeed consequences for those who believe they
are above the laws that protect our fellow officers and enable American
intelligence agencies to operate with the requisite degree of secrecy.”
The chilling lesson for reporters and sources, The Times’s
Shane told me, contrary to Petraeus, “is that seemingly innocuous
e-mails not containing classified information can be construed as a
crime.”
Journalist and author Steve Coll, now dean of the Columbia School of Journalism, raised questions about the case in a New Yorker magazine article
last April. “Which matters more: Kiriakou’s motives or his reliability,
or the fact that, however inelegantly, he helped to reveal that a
sitting president”—George W. Bush—“had ordered international crimes?”
Coll asked. “Does the emphasis on the messenger obscure the message?”
There is no “perfect solution to this problem” of how to protect
necessary secrets while informing citizens about their government, Jack
Goldsmith, the Harvard Law professor and former Bush administration
lawyer, told me. “Too much secrecy and too much leaking are both bad.”
he said. “A leaker has to be prepared to subject himself to the
penalties of law, but leaks can serve a really important role in helping
to correct government malfeasance, to encourage government to be
careful about what it does in secret and to preserve democratic
processes.”
Climate of fear sets in
The next escalation in the Obama administration’s war on leaks had
already been prompted by a May 7, 2012, Associated Press story
revealing the CIA’s success in penetrating a Yemen-based group,
Al-Qaeda in the Arabian Peninsula, that had developed an improved
“underwear bomb” improvised explosive device (IED) for a suicide bomber
to detonate aboard U.S.-bound aircraft. At the request of the White
House and the CIA, the AP had held the story for five days to protect
continuing aspects of the covert operation. The AP’s discussions with
government officials were similar to many I had participated in with
several administrations during my years as executive editor of The Washington Post, when I was deciding how to publish significant stories about national security without causing unnecessary harm.
After the AP story first appeared on its wire service, the White
House spoke freely about it on the record, publicly congratulating the
CIA. Intelligence officials, however, were angry that the AP story and
subsequent reporting had revealed their covert operation in Yemen. “The
irresponsible and damaging leak of information was made,” CIA Director
John Brennan later told Congress, “when someone informed The Associated
Press that the U.S. had intercepted an IED that was supposed to be used
in an attack and that the U.S. government currently had the IED in its
possession and was studying it.” Brennan said that he had himself been
questioned by the FBI in the investigation of the leak.
Then, on June 1, 2012, The New York Times published a story
by David E. Sanger describing a covert operation code-named Olympic
Games, in which a computer worm called Stuxnet, developed by the U.S.
and Israel, had been used in cyberattacks on the computer systems
running Iran’s main nuclear enrichment facilities. Sanger also detailed
the operation in his book, Confront and Conceal, published at the same time.
Even though the existence of the worm was already known because a
computer error had sent it around the world two years earlier, the
details in Sanger’s story and book helped cause political trouble for
Obama. Republicans in Congress and conservative pundits loudly accused
the administration of purposely leaking classified information used in
the AP and New York Times stories to embellish Obama’s counterterrorism credentials in an election year.
The Justice Department responded by opening aggressive investigations
to find and prosecute the unnamed sources of both stories. Rejecting
Republican calls for special prosecutors, Attorney General Holder
assigned two senior U.S. attorneys to run the investigations. The New York Times
reported that federal prosecutors and the FBI questioned scores of
officials throughout the government who had knowledge of either covert
operation or who were identified in computer analyses of phone, text,
and e-mail records as having any contact with the journalists involved.
“A memo went out from the chief of staff a year ago to White House
employees and the intelligence agencies that told people to freeze and
retain any e-mail, and presumably phone logs, of communications with
me,” Sanger told me. As a result, he said, longtime sources would no
longer talk to him. “They tell me, ‘David, I love you, but don’t e-mail
me. Let’s don’t chat until this blows over.’”
The director of national intelligence, James Clapper, announced on
June 25, 2012, his own internal steps to stem leaks. Employees of all 16
U.S. intelligence agencies—including the CIA, NSA, FBI and Defense
Intelligence Agency—would be asked during routine polygraph examinations
whether they had disclosed any classified information to anyone. And
the new inspector general for the Intelligence Community, with
jurisdiction over all its agencies, would investigate leak cases that
had not produced prosecutions by the Justice Department to determine
what alternative action should be taken. A classified report from the
inspector general to Clapper, obtained about the same time by the
Federation of American Scientists’ Project on Government Secrecy, showed
that the inspector general was already reviewing 375 unresolved
investigations of intelligence agency employees.
Five months later, on November 21, 2012, after a year’s planning by
its Insider Threat Task Force, the White House issued a presidential
memorandum instructing all federal government departments and agencies
to set up Insider Threat Programs to monitor employees with access to
classified information and prevent “unauthorized disclosure.” According
to the National Insider Threat Policy, each agency must, among other
things, develop procedures “ensuring employee awareness of their
responsibility to report, as well as how and to whom to report,
suspected insider threat activity.” Officials cited the Manning case as
the kind of threat the program was intended to prevent.
A survey of government department and agencies this summer by the
Washington bureau of the McClatchy newspapers found that they had wide
latitude in defining what kinds of behavior constituted a threat.
“Government documents reviewed by McClatchy illustrate how some agencies
are using that latitude to pursue unauthorized disclosures of any
information, not just classified material,” it reported in June. “They
also show how millions of federal employees and contractors must watch
for ‘high-risk persons or behaviors’ among co-workers and could face
penalties, including criminal charges, for failing to report them. Leaks
to media are equated with espionage.”
Michael Hayden, who was director of the NSA and then the CIA during
the Bush administration, told me that, in his view, the unfolding
Insider Threat Program “is designed to chill any conversation
whatsoever.”
“The simplest thing to do is to avoid contacts with the press,” the
government transparency advocate Steven Aftergood said about the
program. “It discourages even casual contacts with the press and members
of the public,” he said.
“Reporters are interviewing sources through intermediaries now,” Washington Post
national news editor Cameron Barr told me, “so the sources can
truthfully answer on polygraphs that they didn’t talk to reporters.”
Media outraged over AP secret subpoena
In May of this year, two revelations of Justice Department tactics in
the war on leaks caused already roiling tensions between news media and
the Obama administration to boil over.
On May 13, the Justice Department informed the Associated Press—three
months after the fact—that as part of its investigation of the AP story
a year earlier about the CIA’s covert operation in Yemen, it had
secretly subpoenaed and seized all records for 20 AP telephone lines and
switchboards for April and May of 2012. The records included outgoing
calls for the work and personal phone lines of individual reporters, for
AP news bureau lines in New York, Washington, and Hartford, Conn., and
for the main AP phone number in the press gallery of the U.S. House of
Representatives. Although only five AP reporters and an editor were
involved in the May 12, 2012, Yemen story, “thousands upon thousands of
newsgathering calls” by more than 100 AP journalists using newsroom,
home, and mobile phones were included in the seized records, AP
President Gary Pruitt said in an interview with CBS News’ “Face the
Nation” television program. “There can be no possible justification for
such an overbroad collection of the telephone communications of The
Associated Press and its reporters,” Pruitt wrote
in a letter of protest to Attorney General Holder. “These records
potentially reveal communications with confidential sources across all
of the newsgathering activities undertaken by the AP during a two-month
period, provide a road map to AP’s newsgathering operations and disclose
information about AP’s activities and operation that the government has
no conceivable right to know.”
“I don’t know what their motive is,” Pruitt said on “Face the
Nation.” But, he added, “I know what the message being sent is: If you
talk to the press, we’re going after you.” There was an immediate outcry
from the rest of the press. The next day, a coalition of more than 50
American news media organizations—including the Newspaper Association of
America, National Association of Broadcasters, American Society of News
Editors, Society of Professional Journalists, ABC, NBC, CNN, NPR,
Gannett, McClatchy, Tribune, The New York Times, and The Washington Post—joined the Reporters Committee for the Freedom of the Press in a strong protest letter
to Holder. The secret subpoena and seizure of AP phone records, the
letter stated, call “into question the very integrity of Department of
Justice policies toward the press and its ability to balance, on its
own, its police powers against the First Amendment rights of the news
media and the public’s interest in reporting all manner of government
conduct, including matters touching on national security which lie at
the heart of this case.” CPJ’s board of directors also sent an
unprecedented letter of protest to Holder.
Substantively, the news organizations charged in their letter that
the Justice Department “appears to have ignored or brushed aside almost
every aspect” of its own four-decade-old guidelines governing subpoenas
of journalists and news organizations. The Justice guidelines prescribed
that such a subpoena should be used only a last resort in a federal
investigation. They stated that “the subpoena should be as narrowly
drawn as possible,” that the targeted news organization “shall be given
reasonable and timely notice” to negotiate the subpoena with Justice or
to fight it in court, and that “the approach in every case must be to
strike the proper balance between the public’s interest in the free
dissemination of ideas and information and the public’s interest in
effective law enforcement and the fair administration of justice.”
By secretly serving the subpoena for the records directly on
telephone companies without notifying the AP, the Justice Department
avoided negotiations with the news agency or a court challenge over its
broad scope. That would be permitted as an exception to the Justice
guidelines if prosecutors believed prior notification and negotiations
would “pose a substantial threat to the integrity of the investigation.”
But there was never an explanation of what threat might have been posed
in this case, since preservation of the records by the phone companies
was never in question and the news leak under investigation had occurred
long before.
I can remember only one similar event during my 17 years as executive editor of The Washington Post. In 2008, the FBI director at the time, Robert S. Mueller III, formally apologized to me and to the executive editor of The New York Times for the unexplained secret seizure
four years earlier of the phone records of our foreign correspondents
working in Jakarta, Indonesia—because the Justice guidelines had been
violated and no subpoena had been issued. But I recall a number of
instances during several U.S. administrations in which other federal
investigative requests, for which the newspaper had prior notification,
were successfully negotiated in ways that protected our newsgathering
independence in accordance with the Justice guidelines.
A week after the revelation of the secret seizure of AP telephone records, The Washington Post reported that the Justice Department had also secretly subpoenaed
and seized telephone and e-mail records of the Fox News chief
Washington correspondent, James Rosen, in the Espionage Act prosecution
of Stephen Jin-Woo Kim. Federal investigators used the records to trace
phone conversations and e-mail exchanges between Rosen and Kim in June,
2009, at the time of Rosen’s story about U.S. intelligence monitoring of
North Korea’s nuclear program. Although investigators had already
gathered evidence from Kim’s phone records and computer at the State
Department, where he worked as a contract analyst with access to
classified information, they used the secret subpoena to seize Rosen’s
phone records and personal e-mails. They also used electronic security
badge records to track the comings and goings of Rosen and Kim at the
State Department.
Most disturbing for journalists and news organizations, the FBI
affidavit filed in support of the successful federal court application
for the secret subpoena declared that “there is probable cause to
believe that the reporter has committed or is committing a violation” of
the Espionage Act—“at the very least, either as an aider, abettor
and/or co-conspirator” —in seeking and accepting information from Kim
while doing his job as a journalist. “The reporter did so by employing
flattery and playing to Mr. Kim’s vanity and ego,” the affidavit said,
potentially—if not laughably—criminalizing a routine interview tip
taught to every cub reporter.
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.
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 regarding whom a federal judge “determines that
such protections would be in the interest of justice and necessary to protect
lawful and legitimate news-gathering activities under the specific
circumstances of the case.” 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.
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 OktavÃa 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.
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.”
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.
