First, there was the news that the Justice Department had secretly seized telephone records of reporters at the Associated Press. A week later, reports that the department had investigated a Fox News reporter as a potential criminal for doing his job.
Those actions – and possibly more – by President Barack Obama’s administration are part of an unprecedented crackdown on classified national security leaks.
And that has led journalists, First Amendment scholars and groups that advocate for government transparency to question how much the White House values a free and open press.
“The scope of this action calls 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 on all manner of government conduct,” according to a recent letter to Attorney General Eric Holder from 52 media organizations, including McClatchy.
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Obama said he is trying to strike a balance between the media’s First Amendment protections against government censorship and the United States’ national security interests.
“As commander-in-chief, I believe we must keep information secret that protects our operations and our people in the field. To do so, we must enforce consequences for those who break the law and breach their commitment to protect classified information,” Obama said in a major counterterrorism speech Thursday.
His administration has aggressively prosecuted whistleblowers under the 1917 Espionage Act, bringing six cases against employees for leaks compared with only three known previous cases.
Among them, the government has been trying to force New York Times reporter James Risen to testify about his sources involving a failed CIA effort to sabotage Iran’s nuclear program.
In another, Army Pfc. Bradley Manning pleaded guilty to leaking of hundreds of thousands of documents to WikiLeaks, the anti-secrecy group. And now, First Amendment advocates are anxiously awaiting the government’s decision on whether to prosecute WikiLeaks.
“Despite longtime warnings that the Obama administration’s ‘war on whistleblowers’ had become a ‘war on journalists’. . . the U.S. media has obviously not taken the full First Amendment implications seriously enough,” said Coleen Rowley, a former FBI special agent and whistleblower who is affiliated with the liberal Institute for Public Accuracy, a nonprofit group that tries to promote alternative views on a variety of subjects.
At the White House, tensions between reporters and administration officials have been brewing for months. Obama’s aides have always revealed little information to the media, often choosing instead to deliver their own news through government-sponsored websites, blogs and Twitter accounts that include government photos and video. In recent weeks, the atmosphere has gotten worse as reporters have begun to wonder how to protect themselves against possible government intrusion.
White House spokesman Jay Carney, a former reporter for Time magazine, has been besieged by questions about the AP and Fox News cases and, at times, struggled to explain the administration’s policies on targeting journalists. He said he and the president learned of both cases from the news media.
On Monday, Carney declined to say whether journalists should be prosecuted for soliciting information from government officials. On Tuesday, he said he spoke to Obama and learned the president was not interested in prosecuting reporters. “If you’re asking me whether the president believes that journalists should be prosecuted for doing their jobs, the answer is no,” Carney said.
But Carney also said that Obama could not ask Holder to release the names of reporters and news organizations being monitored as a part of leak investigations or to write him a letter directing him to not pursue journalists because that would be intervening in criminal cases.
On Thursday, Obama said he is worried that leak investigations may “chill” investigative journalism and announced that he has asked Holder to review the Justice Department’s guidelines by July 12.
In the case of Associated Press, the Justice Department seized records that listed every call made in April and May last year by about 100 reporters from AP’s main offices in New York, Washington and Hartford, Conn., and from its office in the House of Representatives press gallery. In a letter to Holder, AP President Gary Pruitt said the government obtained “massive and unprecedented” information far beyond what could be justified by a specific investigation. He demanded the return of the phone records and destruction of all copies. (Pruitt is the former president, CEO and chairman of McClatchy.)
Justice did not say why the AP was targeted. But officials have acknowledged they are conducting a criminal investigation into who may have leaked information contained in a 2012 AP story about a terror plot that included details of a CIA operation in Yemen that stopped an al Qaida plot to detonate a bomb on an airplane bound for the United States.
In the case of Fox News, Justice reviewed reporter James Rosen’s security badge records, phone logs and personal emails and called him a co-conspirator in an affidavit seeking a search warrant. Michael Clemente, Fox executive vice president for news, called the government’s actions “downright chilling.”
Rosen wrote about a former State Department arms expert, Stephen Kim, accused of leaking classified information about North Korea. Kim was charged in 2010 and his trial could start next year.
Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, said it’s difficult to know if there is a change in Obama’s policies toward the media, though he said his actions are more disappointing since Obama offered a sweeping promise of transparency when he came into office.
Lawmakers on Capitol Hill, who are considering holding hearings on the media investigations, have reacted with legislation designed to protect journalists.
A group of House of Representatives members from both parties have introduced a bill that would require court approval when the government demands phone records from service providers. A Democratic senator has reintroduced a media shield law that offers legal protections to journalists engaged in newsgathering activities.
Modern case law is not clear on some of these issues, experts say, but the Justice Department has published guidelines that require it to make reasonable attempts to seek the information from other sources, to negotiate with news organizations prior to seizing documents, and to narrowly draw subpoenas of journalists.
Floyd Abrams, an attorney who is an expert on constitutional law and defended the New York Times in a CIA leak investigation in 2005, said the government violated its own guidelines by failing to notify AP and misstating the law by considering Rosen a criminal.
Abrams said the administration needs to take a deep breath and realize that limits should exist in leak investigations for targeting reporters. “They seem to have lost a sense of perspective,” he said.