The New York Times today calls the out the Obama administration for overreach. It has
moved beyond protecting government secrets to threatening fundamental freedoms of the press to gather news.
When the Justice Department began investigating possible leaks of classified information about North Korea in 2009, investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.
They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails.
This is the ultimate issue. The journalist's job is to work sources, to collect information and to present it to his or her readers or viewers. Sometimes, that will involve some cloak-and-dagger work, though most of the time it won't. And it often puts journalists in adversarial relationships with those in power.
In our republican form of government, we grant the executive branch a significant amount of authority, expecting the other two legs of the stool -- the judiciary and the legislative branch -- to act as balancing entities. The founders, after much dispute and acrimony, came to understand that these checks on power were not enough, so they included a Bill of Rights -- the first 10 amendments -- as an addendum to the Constitution that set up our government. And the first of these amendments (based in part on the Virginia Declaration of Rights, which declared that "freedom of the press is one of the great bulwarks of liberty") banned Congress from "abridging the freedom of speech, or of the press" -- a prohibition that has come over the years to include the executive branch and the state governments, as well.
The reason, as the English constitutional theorist and philosopher said (quoted by Thomas Carlyle), is that
Literature is our Parliament too. Printing, which comes necessarily out of Writing, I say often, is equivalent to Democracy; invent Writing, Democracy is inevitable ... Whoever can speak, speaking now to the whole nation, becomes a power, a branch of government, with inalienable weight in lawmaking, in all acts of authority. It matters not what rank he has, what revenues or garnitures: the requisite thing is that he have a tongue which others will listen to; this and nothing more is requisite. The nation is governed by all that has tongue in the nation. Democracy is virtually there.
Under US law, it is not illegal to publish classified information. That fact, along with the First Amendment's guarantee of press freedoms, is what has prevented the US government from ever prosecuting journalists for reporting on what the US government does in secret. This newfound theory of the Obama DOJ - that a journalist can be guilty of crimes for "soliciting" the disclosure of classified information - is a means for circumventing those safeguards and criminalizing the act of investigative journalism itself. These latest revelations show that this is not just a theory but one put into practice, as the Obama DOJ submitted court documents accusing a journalist of committing crimes by doing this.Greenwald then demolishes the standard reply -- that Obama is attempting to balance national security with press freedoms, a balance that Obama clearly sees as favoring the need to keep secrets (no matter how chilling the effects on the media). Otherwise, why -- as The Washington Post points out -- is our ostensibly liberal and civil-liberties-loving president lead an administration that has pursued more leak cases "than all previous administrations combined"? As Greenwald says, there's "no defense for this behavior."
That same "solicitation" theory, as the New York Times reported back in 2011, is the one the Obama DOJ has been using to justify its ongoing criminal investigation of WikiLeaks and Julian Assange: that because Assange solicited or encouraged Manning to leak classified information, the US government can "charge [Assange] as a conspirator in the leak, not just as a passive recipient of the documents who then published them." When that theory was first disclosed, I wrote that it would enable the criminalization of investigative journalism generally.
Obama defenders such as Andrew Sullivan claim that this is all more complicated than media outrage suggests because of a necessary "trade-off" between press freedoms and security. So do Obama defenders believe that George Bush and Richard Nixon - who never prosecuted leakers like this or formally accused journalists of being criminals for reporting classified information - were excessively protective of press freedoms and insufficiently devoted to safeguarding secrecy? To ask that question is to mock it. Obama has gone so far beyond what every recent prior president has done in bolstering secrecy and criminalizing whistleblowing and leaks.Even Dana Milbank at The Washington Post, who has been the definition of Beltway insider, is aghast at what he calls the "Rosen affair." He calls it, rightly, I might add,
as flagrant an assault on civil liberties as anything done by George W. Bush’s administration, and it uses technology to silence critics in a way Richard Nixon could only have dreamed of.Of course, that's not what the Rosen affair is about. No one is proposing jailing journalists -- that happens in Iran, not here, right? -- and certainly not President Obama. Milbank quotes White House Press Secretary Jay Carney saying that
To treat a reporter as a criminal for doing his job — seeking out information the government doesn’t want made public — deprives Americans of the First Amendment freedom on which all other constitutional rights are based. Guns? Privacy? Due process? Equal protection? If you can’t speak out, you can’t defend those rights, either.
Obama doesn’t think “journalists should be prosecuted for doing their jobs” (perhaps he could remind the FBI of that), and the administration has renewed its support for a media shield law (a welcome but suspicious gesture, because the White House thwarted a previous attempt to pass the bill).But Milbank -- like Greenwald -- makes it clear that the jailing of reporters may not be all that farfetched, unless the president makes a bold move that eliminates any doubt as to where the president stands on the question. It is not enough to say you support a free press. You have to demonstrate your support with action