Posted from Washington, Aug. 13, 2013
Veteran intel journalist Jeff Stein has an excellent and very comprehensive report (PDF) about how dangerous it is to be a national security journalist these days, and it’s worth highlighting (and condensing with some of the best links).
Stein, who writes the SpyTalk blog and has written for The Washington Post and other media outlets, interviewed an impressive number of working journalists, media experts, lawyers and others for the Computing Now piece. He uses those interviews to show how the prosecutorial war being waged by the Bush and Obama administrations against reporters is actually worse than the general public knows.
When Stein joined The Post in 2010, the situation was already bad enough for an in-house lawyer to tell new hires to not write anything down that they didn’t want the government to see. “Not in your notes, and certainly not in emails,” he quotes the lawyer as saying. “Give your sources code names. Avoid talking about anything sensitive on the phone.”
And the kicker? “Go back to park benches and parking garages,” the lawyer said, in a reference to one of the paper’s main Watergate reporters, Bob Woodward, who famously met his “Deep Throat” source in an underground garage.
Currently, he says the protections afforded reporters back then are virtually non-existent now, especially because so much of their work is done electronically, where there is an easily retrievable record of it. Stein says 37 states and the District of Columbia have press shield laws, varying in scope, that allow reporters to protect their sources. But Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, tells Stein that they “only apply in state courts, and there is no federal shield law, so shield laws do not apply in any national security investigation, which will always be in federal court.”
The upshot is that federal prosecutors have wide leeway in getting subpoenas to track reporters’ emails and telephone calls and compel testimony in court. Stein cites some worrisome and well-known recent precedents, including Judith Miller and James Risen of the New York Times, and, more recently, investigations into some Associated Press reporters and James Rosen of Fox News.
But he says the groundwork for pursuing journalists was laid in 2003, when a federal judge in Chicago, Richard Posner, ruled that a group of authors writing a biography of an Irishman charged with terrorism had to turn over their tapes and notes.
“In swift progression, the Department of Justice and the Federal Bureau of Investigation (FBI) began pursuing journalists for accepting leaks from whistleblowers concerned about government waste, fraud, and abuse,” Stein writes. “And in a truly disturbing development, it seemed like the gumshoes were now viewing reporters as criminal co-conspirators.”
Soon, one respected former television reporter, Mark Feldstein, was interviewed by the FBI as part of an investigation into whether officials of the American Israel Public Affairs Council, or AIPAC, Washington’s most powerful pro-Israel lobby, had trafficked in classified documents. They said they wanted access to research he was doing on a book about the late journalist-muckraker, Jack Anderson, especially the identity of any of Anderson’s former reporters “who were pro-Israel in their views or who had pro-Israeli sources,” according to Feldstein’s later testimony to a congressional committee. Feldstein refused, and told Congress that the FBI’s effort “suggested that the Bureau viewed reporters’ notes as the first stop in a criminal investigation rather than as a last step reluctantly taken only after all other avenues have failed.”
Meanwhile, the Justice Department was going after Risen again, for information about Iran in his 2006 book, “State of War: The Secret History of the CIA and the Bush Administration.” But as Stein writes, Risen is far from the only journalist being targeted. “We’re out for scalps,” a senior Justice official confided to Shane Harris, author of “TheWatchers,” a book about government surveillance programs.
A year later, former NSA contractor Edward Snowden began leaking classified information to journalists Glenn Greenwald of The Guardian, Barton Gellman of The Washington Post and documentary filmmaker Laura Poitras. By then, the Justice Department was well into its investigation of Rosen, Fox News’ chief Washington correspondent, after he broadcast a story, based on a top-secret document about North Korea’s nuclear strategy that referred to “CIA sources.” In an affidavit, an FBI agent said there was “probable cause to believe” that Rosen was committing a crime—and that he was “an aider and abetter and/or co-conspirator” to alleged violations of the 1917 Espionage Act.
Stein also does a nice job of summarizing the chilling effect all of this has had on working journalists, and the media’s disdain for Obama’s new reforms aimed at protecting reporters and making sure leak investigations don’t go too far. “Reporters are frustrated, but the public is the loser when the press can’t get `the real story’ behind the government’s canned statements and evasions,” Stein writes.
And lest anyone think that things are getting any better, Risen’s case is not only still continuing, but he recently suffered a significant setback. He’s been ordered to testify in the criminal trial of former CIA official Jeffrey Sterling, who has been indicted under the Espionage Act of 1917 for allegedly leaking information to Risen. Last month, the federal appeals judge in Richmond, Virginia, ruled that Risen could not claim a reporter’s privilege under the First Amendment to avoid having to testify.
So, in short, the court has not only ruled that Risen must reveal his source, it has essentially ruled that committing an act of journalism could soon become an imprisonable offense.
Josh Meyer is director of education and outreach for the Medill National Security Journalism Initiative. He spent 20 years with the Los Angeles Times before joining Medill, where he is also the McCormick Lecturer in National Security Studies. Josh is the co-author of the 2012 best-seller “The Hunt For KSM; Inside the Pursuit and Takedown of the Real 9/11 Mastermind, Khalid Sheikh Mohammed,’’ and a member of the board of directors of Investigative Reporters and Editors.
