What war on the press?
President Barack Obama has declared war on the press, say writers at Slate, the Daily Beast, Reason, the Washington Post (Jennifer Rubin, Dana Milbank and Leonard Downie Jr.), Commentary, National Journal (Ron Fournier), the New York Times editorial page, CBS News, Fox News (Roger Ailes) and even Techdirt. Scores of other scribes and commentators have filed similar dispatches about this or that federal prosecution “chilling” the press and pulping the First Amendment. Downie, who could open an aquatics center with the leaks his reporters collected during his 17 years as executive editor of the Washington Post, calls the “war on leaks … the most militant I have seen since the Nixon administration.”
The most recent casualties in the alleged press war are Fox News Channel and the Associated Press. The phone records of reporters at these outlets were subpoenaed by federal investigators after the organizations published national security secrets. Then you have New York Times reporter James Risen. Federal prosecutors have been trying to force Risen onto the stand in the trial of alleged leaker-to-the-media Jeffrey Sterling (CIA) since the latter days of the Bush administration. When media strumming on the free-press topic reaches full volume, reporters and their defenders include the leak prosecutions of Thomas Drake (National Security Agency) and John Kiriakou (CIA), even though no journalist (or journalist record) appears to have suffered a subpoena in these cases. (However, the indictments in both the Drake and Kiriakou cases cite email communications with journalists.)
Championing the besieged press has become so popular that some Republicans have switched sides. Even the commander-in-chief of the alleged war, Barack Obama, has proved himself capable of making sad faces about the “war” on journalism! In his national security speech Thursday, he said, “I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.” Obama went on to promise a review of the Department of Justice guidelines on press subpoenas. These are the guidelines that ordinarily exempt reporters from federal subpoenas and which his Department of Justice ignored in the AP and Rosen investigations. To make nice with the press, Obama promised to convene a powwow of DoJ bigwigs and media organizations to address the press corps’ “concerns.” (Word to my press colleagues: Invitations to discuss “concerns” with bureaucrats are usually a prelude to a kiss-off.)
But all this legal battering of the press, while real, hardly rises to the level of war. Take, for example, the language in the affidavit for search warrant for Fox News reporter James Rosen’s emails, which refer to a “criminal offense.” To journalists’ ears, the affidavit sounds like the precursor to an arrest, and has caused many otherwise sober reporters to protest that the Department of Justice was attempting to criminalize their business. But as George Washington University Law School Professor Orin Kerr argues in this precise blog item, the language in the affidavit “is designed to show compliance with the Privacy Protection Act” and is not a prelude to a prosecution.
No charges have been filed against Rosen, and the Department of Justice say none are anticipated. The Obama administration has yet to indict any journalists for acquiring or publishing classified information and claims it has no plans to do so. Testifying before the House Judiciary Committee on May 15, Attorney General Eric Holder expressed his negative enthusiasm for prosecuting journalists.
“You’ve got a long way to go to try to prosecute people — the press — for the publication of that [classified] material,” Holder said, and such prosecutions have “not fared well in American history.” (See Josh Gerstein’s take on the affidavit and the business of prosecuting journos.)
The leak crackdown — and there has been one — has been mostly on the supply side, in the bureaucracy’s offices and corridors where the government leakers dwell, and not the demand side in newsrooms, where journalists hang out. As Scott Shane and Charlie Savage explained in the New York Times almost a year ago — long before the AP and Rosen cases surfaced — happenstance contributed to the uptick in prosecutions. Obama inherited cases from the Bush administration, both parties in Congress supported a more restrictive secret-keeping policy, leak investigation protocols were “streamlined” in 2009 and surveillance technology was making it easier to bring prosecutions that stick. Also, the WikiLeaks torrent of 2010 ripped through the headlines, causing the administration major grief and leaving it with a grudge against the press. And, in June 2012, additional new rules to hinder leakers were promulgated.
Meanwhile, Republicans cheered on leak-chasers. In June 2012, 30 Republican senators agitated for greater leaks investigations because they believed that Obama’s administration — seeking to improve the president’s chances in the 2012 election — was planting leaks about the drone program, the “kill lists” and Stuxnet with the New York Times, where big stories appeared. Of the drone story in the Times, conservative columnist Charles Krauthammer declared, “This was no leak. This was a White House press release.” These sentiments were shared by progressive Glenn Greenwald, who wrote that the story came from inside the administration and was “designed to depict President Obama, in an Election Year, as a super-tough, hands-on, no-nonsense Warrior.” (Hat tip to Huffington Post’s Michael Calderone.) Meanwhile, Senators Lindsey Graham (R-S.C.) and John McCain (R-Ariz.) demanded the naming an outside special counsel to investigate the leakers. I have little doubt that before too long we’ll be reading on our front pages about the press-entangling investigations into the drone, the kill list and Stuxnet leaks, and the cries of war on the press will escalate ‑ again, a crackdown on suppliers, not demanders.
Senator Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, went the Republican leak-haters one better last year — proving that Obama’s war on the press belongs to all political parties and two branches of government — by proposing a dozen new anti-leak measures. She wanted intelligence agency employees to report all contact with the media, to limit contacts between intelligence employees and the press to designated officials only, to expand polygraph testing in the executive branch, to restrict commentary in the press by former government officials and to establish a half-dozen record-keeping programs to monitor and discourage leaks. The bulk of Feinstein’s initiative failed, but it will be back.
Inevitably, press complaints about a war against them include gripes about how tightlipped the current administration has become. According to Leonard Downie, reporters covering today’s White House say officials won’t talk to them and refer them to hostile, bullying press aides instead. “The White House doesn’t want anyone leaking,” one anonymous reporter told Downie about the permanent snub, continuing, “There are few windows on decision-making and governing philosophy. There is a perception that Obama himself has little regard for the news media.”
I can match Downie’s reporting on this point: My colleagues tell me the same about the Obama administration, likening it to an information black hole. And here, I think, we locate the bedrock of the press beef against Obama. Journalists naturally oppose leak investigations for the practical reason that leak investigations dam the free flow of information that makes their stories breathe.
Of course, the work that journalists do is important, and yes, I want more openness from the administration and less vindictive approaches to leakers. But to fully comprehend the press corps’ complaints, it helps to understand that the press lobbies ‑ just like any other interest group whose privilege is threatened by government laws, policies and prosecutions. Inordinately sensitive to any changes in the standard source-reporter customs, the Washington press corps revolts at even minor changes in their status. Obama’s wholesale deflation of their standing has made comrades out of ideological enemies. How else to explain Len Downie hollering “Nixon” at the same time Fox News’s Roger Ailes is invoking “McCarthy” to denounce the Obama administration?
Suppression of the press contains in it the seeds of its own destruction. Or at least I like to think so. By bottling up information and limiting the opportunity of the press (and civilians) to scrutinize it, politicians lose the faith of some of the most ardent supporters and inspire professional doubters and free-thinkers in the press to redouble their efforts. Obama’s campaign against leaks can only succeed if he exterminates all second-guessing from inside the national security establishment. And seeing as the president is only a short-timer and the national security establishment is permanent, and constitutes an interest group as well, all his victories over leakers and the press will be temporary.
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PHOTO: U.S. President Barack Obama makes a point about his administration’s counter-terrorism policy at the National Defense University at Fort McNair in Washington, May 23, 2013. REUTERS/Larry Downing