What war on the press?

May 24, 2013

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


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When a government has repeatedly and deliberately failed to follow its own laws, violated the fundamental human rights of its citizens, threatened the sanctity of a free press, created institutions intended to eliminate privacy of communication, waged war at the behest of special interest that threatens the public safety, killed hundreds of children with drone strikes, imprisoned and destroyed the lives of countless individuals for victimless crimes, stifled economic opportunity to maintain the dominance of the financial elite, stolen from the people through an absurd system of taxation and inflation, sold future generations into debt slavery, and abused its power to suppress political opposition, it is unfit to exist and it becomes the duty of the people to alter or abolish that government by whatever means necessary to secure liberty and ensure peace.

Posted by UrielsServant | Report as abusive

If Obama was only interested in finding the leaks, couldn’t they have obtained the phone records of everyone in the administration who knew about the leaked information? It would have been a larger task, but wouldn’t have been an infringement on the “free press” (as opposed to the one that is bought and paid for).

Posted by KenG_CA | Report as abusive

Just the overpaid, non-productive Washington political class having fake histrionics over yet another hyper-inflated , fake crisis. What war on 1st Amendment free speech rights? When the AP and Fox Entertainment Channel rushed to leak classified information, the Federal government has the legal authority, the responsibility and duty to investigate the individual [s] responsible, determine the amount and severity of the security thefts assess damages resultant leak and develop transmission or storage methodology and/or anti-intruder defenses What ‘Free Press? Those big critters were extinct in Ronnie’s 2nd term; it’s a shame that only, the puny, paid speech critters with big mouths are left. Without exception every national media communication network, is corporately owned, controlled and directed and many SMSA where all media outlets are owned and controlled by one mega-media corporation. The Federal government more and more looks like a ‘down-on-its- luck, three ring circus, a ringmaster in each ring, three right clown caucuses, many different breeds of left ring cats yet subtly tied by their felinity and, a small group of black striped, white Dinos and white striped, Black rhinos in the middle ring. Most of the front row, luxurious box seats are full, the top row, least expensive bleacher less than half full; “small gate tonight”, the biggest, right ring clown muttered. Meanwhile, the same fact & fiscal impact was being discussed by approx 30 different breeds of left ring cats in the BBR,( Big Beautiful Ruff) caucus determined to defeat any right ring clowns’ amendment reducing left ring cats social program spending while increasing spending for right ring clown’s toys. Coincidentally , the same fact and the same fiscal impact was being discussed by all of the rinos and dinos in the middle ring, [what? why by all them? I told you once already, there’s only a small group left)It didn’t take long to agree that the center ringers were so few they couldn’t make a difference and left the caucus area; only the caucus leader didn’t resume going around and around the same circle. Moving only his eyes, he looked for and found the biggest right ring clown and with a small ear twitch turned his eyes away. Again moving only his eyes looked and saw all the different breeds of the left ring cats and with a small ear twitch turned his eyes away. Then with very audible growl of disgust couched down and relaxed on all four paws; only one Dino heard him mutter, “Are We Ever going to get our acts back together?”

Posted by JBltn | Report as abusive

I fail to see how a war on leakers is not a war on investigative journalism. If there are no leakers, investigative journalists will have a hard time getting any information that the government does not want the public to know.

This is setting aside the extremely important issue of what was done in Rosen’s case, of which you point to Orin Kerr to explain what really happened in this case (which according to you seems to imply tho whole “war on the press” thing is all a do about little). Orin Kerr implies that the government’s argument that “there is probable cause to believe that the Reporter . . . has committed a violation of 18 U.S.C. 793(d) either as Mr. Kim’s co-conspirator and/or aider and abetter.” is really their way of getting around the Privacy Protection Law in order to get a hold of Rosen’s emails. So in reality the government is not really serious about accusing Rosen as being a “co-conspirator and/or aider and abetter” for the whistleblower, as they have not, and will not prosecute Rosen. Thus we should not worry about the government’s labeling of an investigative journalist’s work as a crime, as its just for the purpose of getting their hands on their work. Really? http://www.rollingstone.com/politics/blo gs/national-affairs/wikileaks-stratfor-e mails-a-secret-indictment-against-assang e-20120228

Oh, oh, and Obama is bowing down to pressure and is proposing laws that would shield journalists from this very thing. Right? http://www.huffingtonpost.com/2013/05/15  /reporter-shield-law-obama_n_3280025.ht ml
You state that “Obama’s campaign against leaks can only succeed if he exterminates all second-guessing from inside the national security establishment.”… except those who do the second-guessing are usually not those in positions of power w/in the national security establishment. On top of that you suppose that future administrations would not be equally victorious over leakers and the press when it was you who previously pointed out that leak suppression was supported by both parties in Congress and facilitated by streamlined leak investigation protocols and new surveillance technology.

So you ask ,“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?” …possibly because there are serious reasons to do so?

Posted by ochun005 | Report as abusive

We need to update the definition of ‘press’ before we can make any progress on this issue. Is wikileaks…. press? Recall that they do not hack. They simply distribute leaked classified information. Knowingly and evasively. Press? What about a blogger who re-bundles news? Maybe deals in some classified information from time to time. or some contacts with enemy forces. Press? Immune from national security investigations? It seems we’re still conceiving of the press as though it’s a guy in a Clark Kent hat and a big light bulb camera. Working for the Daily Planet. Doy.

Posted by AlkalineState | Report as abusive

AlkalineState… perhaps when we update the definition, we could take into consideration why a free press is important. I think if we use that as a guide there should be no problem with the results (xcept for some in the mainstream media :))

Posted by ochun005 | Report as abusive

ochun005, I agree a free press is critical. But impossible to have if you do not draw a clear line between press and espionage. Both are about getting facts, making contacts, protecting your sources at any cost. But one is legal and one is not.

Posted by AlkalineState | Report as abusive

wikileaks committed espionage? How’d they do that? How was what they did different to what the new york times did when they published the same information (that was, after refusing to do so when bradley manning came to them). Organizations like wikileaks have been made necessary because of the pure crappy job the mainstream media has been doing, their reverence to government is nauseating. The crackdown on whistleblowers has been happening for a long time. Where was the mainstream press on this before the AP story? How bout signature strikes? Kill lists? Assassinations of US citizens by the US government? etc. Could wikileaks have done a better job releasing those cables, maybe… but espionage? Again, I think that fine tuning the definition of what the ‘press’ should refer to is a great idea, even a necessary one. But we need to be wary of people who would just use this opportunity to censor and ban those who are trying to shake the complacency out of our so called press.

Posted by ochun005 | Report as abusive

ochun005, I do not think wikileaks committed espionage. I also don’t think they are ‘press’ because they don’t report, they just encrypt and dump random data. Doesn’t provide context or validation. The importance of drawing the line between press and espionage, and sticking to it is that if you don’t…. the U.S. government starts acting like Russia or China. Any opposition or dissent is prosecuted and buried. It’s disappointing that Congress and the White House are not even having the conversation about what ‘press’ is any more. But they keep talking about the press as though they are all talking about the same thing.

Posted by AlkalineState | Report as abusive

AlkalineState, I think of the press in more it’s utilitarian context. Which means I think the most important function of a free press is to inform the public, so that the public can keep its government in check. So we disagree on wikileaks, although I’ll concede that it is not what we have ordinarily thought of as the press. Bloggers also serve that function when they do what the mainstream media refuses to do, namely, to analyze how government policies/actions can be, and are, harmful. Given that, I am not optimistic of what would come out of a discussion between Congress and the White House regarding what the press is, if this simply means choosing one group who does things a certain way over another group who does it differently. If I had to guess,I think they would discredit those using unconventional methods (which are often the most adversarial/not in the mainstream) and then keep those in the mainstream (those that are the most reverent to them) from stepping out of line by threatening to do the same to them. In sum, I don’t think that redefining what the press is, as opposed to what it’s purpose should be, would constrain the government from bullying those who are insufficiently reverent to them.

Posted by ochun005 | Report as abusive

“Free Press” no longer exists. All MSM is owned and operated by multinational corporations with agendas… having nothing to do with informing the electorate.

Posted by VinnieTheSnake | Report as abusive