By the Committee to Protect Journalists. October 10, 2013. Published at CPJ.org.
Leak investigations and surveillance in post-9/11 America
U.S. President Barack Obama came into office pledging open government, but he has fallen short of his promise. Journalists and transparency advocates say the White House curbs routine disclosure of information and deploys its own media to evade scrutiny by the press. Aggressive prosecution of leakers of classified information and broad electronic surveillance programs deter government sources from speaking to journalists. A CPJ special report by Leonard Downie Jr. with reporting by Sara Rafsky
WASHINGTON, D.C.
In the Obama administration’s Washington, government officials are increasingly afraid to talk to the press. Those suspected of discussing with reporters anything that the government has classified as secret are subject to investigation, including lie-detector tests and scrutiny of their telephone and e-mail records. An “Insider Threat Program” being implemented in every government department requires all federal employees to help prevent unauthorized disclosures of information by monitoring the behavior of their colleagues.
Six government employees, plus two contractors including Edward Snowden, have been subjects of felony criminal prosecutions since 2009 under the 1917 Espionage Act, accused of leaking classified information to the press—compared with a total of three such prosecutions in all previous U.S. administrations. Still more criminal investigations into leaks are under way. Reporters’ phone logs and e-mails were secretly subpoenaed and seized by the Justice Department in two of the investigations, and a Fox News reporter was accused in an affidavit for one of those subpoenas of being “an aider, abettor and/or conspirator” of an indicted leak defendant, exposing him to possible prosecution for doing his job as a journalist. In another leak case, a New York Times reporter has been ordered to testify against a defendant or go to jail.
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Compounding the concerns of journalists and the government officials they contact, news stories based on classified documents obtained from Snowden have revealed extensive surveillance of Americans’ telephone and e-mail traffic by the National Security Agency. Numerous Washington-based journalists told me that officials are reluctant to discuss even unclassified information with them because they fear that leak investigations and government surveillance make it more difficult for reporters to protect them as sources. “I worry now about calling somebody because the contact can be found out through a check of phone records or e-mails,” said veteran national security journalist R. Jeffrey Smith of the Center for Public Integrity, an influential nonprofit government accountability news organization in Washington. “It leaves a digital trail that makes it easier for the government to monitor those contacts,” he said.
“I think we have a real problem,” said New York Times national security reporter Scott Shane. “Most people are deterred by those leaks prosecutions. They’re scared to death. There’s a gray zone between classified and unclassified information, and most sources were in that gray zone. Sources are now afraid to enter that gray zone. It’s having a deterrent effect. If we consider aggressive press coverage of government activities being at the core of American democracy, this tips the balance heavily in favor of the government.”
At the same time, the journalists told me, designated administration spokesmen are often unresponsive or hostile to press inquiries, even when reporters have been sent to them by officials who won’t talk on their own. Despite President Barack Obama’s repeated promise that his administration would be the most open and transparent in American history, reporters and government transparency advocates said they are disappointed by its performance in improving access to the information they need.
“This is the most closed, control freak administration I’ve ever covered,” said David E. Sanger, veteran chief Washington correspondent of The New York Times.
The Obama administration has notably used social media, videos, and its own sophisticated websites to provide the public with administration-generated information about its activities, along with considerable government data useful for consumers and businesses. However, with some exceptions, such as putting the White House visitors’ logs on the whitehouse.gov website and selected declassified documents on the new U.S. Intelligence Community website, it discloses too little of the information most needed by the press and public to hold the administration accountable for its policies and actions. “Government should be transparent,” Obama stated on the White House website, as he has repeatedly in presidential directives. “Transparency promotes accountability and provides information for citizens about what their government is doing.”
But his administration’s actions have too often contradicted Obama’s stated intentions. “Instead,” New York Times public editor Margaret Sullivan wrote earlier this year, “it’s turning out to be the administration of unprecedented secrecy and unprecedented attacks on a free press.”
“President Obama had said that default should be disclosure,” Times reporter Shane told me. “The culture they’ve created is not one that favors disclosure.”
White House officials, in discussions with me, strongly objected to such characterizations. They cited statistics showing that Obama gave more interviews to news, entertainment, and digital media in his first four-plus years in office than Presidents George W. Bush and Bill Clinton did in their respective first terms, combined. They pointed to presidential directives to put more government data online, to speed up processing of Freedom of Information Act requests, and to limit the amount of government information classified as secret. And they noted the declassification and public release of information about NSA communications surveillance programs in the wake of Snowden’s leak of voluminous secret documents to The Washington Post and the Guardian.
“The idea that people are shutting up and not leaking to reporters is belied by the facts,” Obama’s press secretary, Jay Carney, told me, pointing in frustration to anonymously sourced media reports that same day about planning for military action against the government of President Bashar al-Assad in Syria.
“We make an effort to communicate about national security issues in on-the-record and background briefings by sanctioned sources,” said deputy White House national security adviser Ben Rhodes. “And we still see investigative reporting from nonsanctioned sources with lots of unclassified information and some sensitive information.”
He cited as an example the administration’s growing, if belated, official openness about its use of drone aircraft to attack suspected terrorists, including declassification of information about strikes in Yemen and Somalia, following revelations about drone attacks in the news media. “If you can be transparent, you can defend the policy,” Rhodes told me. “But then you’re accused of jeopardizing national security. You’re damned if you do and damned if you don’t. There is so much political controversy over everything in Washington. It can be a disincentive.”
The administration’s war on leaks and other efforts to control information are the most aggressive I’ve seen since the Nixon administration, when I was one of the editors involved in The Washington Post’s investigation of Watergate. The 30 experienced Washington journalists at a variety of news organizations whom I interviewed for this report could not remember any precedent.
“There’s no question that sources are looking over their shoulders,” Michael Oreskes, a senior managing editor of The Associated Press, told me months after the government, in an extensive leak investigation, secretly subpoenaed and seized records for telephone lines and switchboards used by more than 100 AP reporters in its Washington bureau and elsewhere. “Sources are more jittery and more standoffish, not just in national security reporting. A lot of skittishness is at the more routine level. The Obama administration has been extremely controlling and extremely resistant to journalistic intervention. There’s a mind-set and approach that holds journalists at a greater distance.”
Washington Post national security reporter Rajiv Chandrasekaran, a member of CPJ’s board of directors, told me that “one of the most pernicious effects is the chilling effect created across government on matters that are less sensitive but certainly in the public interest as a check on government and elected officials. It serves to shield and obscure the business of government from necessary accountability.”
Frank Sesno, a former CNN Washington bureau chief who is now director of the School of Media and Public Affairs at George Washington University, said he thought the combined efforts of the administration were “squeezing the flow of information at several pressure points.” He cited investigations of “leakers and journalists doing business with them” and limitations on “everyday access necessary for the administration to explain itself and be held accountable.”
The Insider Threat Program being implemented throughout the Obama administration to stop leaks—first detailed by the McClatchy newspapers’ Washington bureau in late June—has already “created internal surveillance, heightened a degree of paranoia in government and made people conscious of contacts with the public, advocates, and the press,” said a prominent transparency advocate, Steven Aftergood, director of the Government Secrecy Project at the Federation of American Scientists in Washington. None of these measures is anything like the government controls, censorship, repression, physical danger, and even death that journalists and their sources face daily in many countries throughout the world—from Asia, the Middle East and Africa to Russia, parts of Europe and Latin America, and including nations that have offered asylum from U.S. prosecution to Snowden. But the United States, with its unique constitutional guarantees of free speech and a free press—essential to its tradition of government accountability—is not any other country.
“The investigation and potential indictment of investigative journalists for the crime of doing their jobs well enough to make the government squirm is nothing new,” Suzanne Nossel, executive director of PEN American Center, wrote earlier this year. “It happens all over the world, and is part of what the Obama administration has fought against in championing press and Internet freedom globally. By allowing its own campaign against national security leaks to become grounds for trampling free expression, the administration has put a significant piece of its very own foreign policy and human rights legacy at risk.”
Financial Times correspondent Richard McGregor told me that, after coming to Washington several years ago from a posting in China, he was surprised to find that “covering this White House is pretty miserable in terms of getting anything of substance to report on in what should be a much more open system. If the U.S. starts backsliding, it is not only a bad example for more closed states, but also for other democracies that have been influenced by the U.S.” to make their governments more transparent.
This report will examine all these issues: legal policies of the Obama administration that disrupt relationships between journalists and government sources; the surveillance programs that cast doubt on journalists’ ability to protect those sources; restrictive practices for disclosing information that make it more difficult to hold the government accountable for its actions and decision-making; and manipulative use of administration-controlled media to circumvent scrutiny by the press.
September 11, 2001, is a watershed
Of course, every U.S. administration in modern times has tried, with varying degrees of success, to control its message and manage contacts with the media and the public. “When I’m asked what is the most manipulative and secretive administration I’ve covered, I always say it’s the one in office now,” Bob Schieffer, the veteran CBS television news anchor and chief Washington correspondent, told me. “Every administration learns from the previous administration. They become more secretive and put tighter clamps on information. This administration exercises more control than George W. Bush’s did, and his before that.”
The terrorist attacks on the United States on September 11, 2001, were a watershed. They led to a rapid buildup of what The Washington Post later characterized as a sprawling “Top Secret America” of intelligence and other government agencies, special military forces, and private contractors to combat terrorism. The “black budget” for the 16 U.S. intelligence agencies alone was more than $50 billion for the fiscal year 2013, according to an NSA document Edward Snowden gave to The Post.
Since the 9/11 attacks, “the national security role of the government has increased hugely,” said Harvard Law School professor Jack Goldsmith, a senior national security lawyer in the Pentagon and the Justice Department during the Bush administration. It has amounted to a “gigantic expansion of the secrecy system,” he told me, “both the number of secrets and the numbers of people with access to secrets.”
By 2011, more than 4 million Americans had security clearances for access to classified information of one kind or another, according to a U. S. Intelligence Community report to Congress required by the 2010 Intelligence Authorization Act, and more and more information was being classified as secret. In that year alone, government employees made 92 million decisions to classify information—one measure of what Goldsmith called “massive, massive over-classification.” For example, the 250,000 U.S. State Department cables that Army Pvt. Chelsea Manning (then known as Pvt. Bradley Manning) downloaded and gave to the Wikileaks website included countless previously published newspaper articles that were classified as secret in diplomatic dispatches to Washington.
The Patriot Act, passed by Congress after the 9/11 attacks and since amended and extended in duration, gave the government increased powers to protect national security, including secret investigations of suspected terrorist activity. During the Bush administration, the NSA, working with the Federal Bureau of Investigation, secretly monitored large amounts of telephone calls that flowed through U.S. telecommunications companies and facilities. This electronic surveillance to detect terrorism threats was eventually authorized and expanded by the closed FISA court created by the 1978 Foreign Intelligence Surveillance Act, enabling the NSA to secretly collect, store, and access records of most telephone and Internet traffic in and passing through the United States.
Initially, the American press did not discover these or other secret counterterrorism activities. It also did not appear to be aggressive in challenging President George W. Bush’s rationale for going to war in Iraq, in addition to the continuing military activity in Afghanistan. “The Bush administration was working to sell the wars and covert programs to journalists,” syndicated foreign affairs columnist David Ignatius told me. “Access was a routine matter.”
But the press coverage gradually changed. In 2003, reporter Barton Gellman detailed in The Washington Post how an American task force had been unable to find any evidence of weapons of mass destruction in Iraq after the American invasion. In 2004, CBS television news and New Yorker magazine writer Seymour Hersh separately reported that U.S. soldiers and intelligence agency interrogators had abused and tortured wartime prisoners in Iraq’s Abu Ghraib prison. In 2005, Washington Post reporter Dana Priest revealed that the Central Intelligence Agency had detained and aggressively interrogated terrorism suspects in extralegal “black site” secret prisons outside the U.S. Later that year, New York Times reporters James Risen and Eric Lichtblau first reported about the warrantless intercepts of Americans’ telephone calls in the NSA’s secret electronic surveillance program. In 2006, Risen published a book in which he revealed a failed CIA covert operation to sabotage Iran’s nuclear program.
These kinds of revelations enabled Americans to learn about questionable actions by their government and judge for themselves. But they infuriated Bush administration officials, who tried to persuade news executives to stop or delay such stories, which depended, in part, on confidential government sources of classified information. The Bush administration started intensive investigations to identify the sources for the stories on CIA secret prisons and NSA electronic surveillance and for Risen’s book. By the time Bush left office, no one had been prosecuted, although a CIA officer was fired for unreported contacts with Priest, and several Justice Department investigations were continuing.
The Bush White House and Vice President Dick Cheney did not hesitate to take issue with an increasingly adversarial press publicly and privately, especially as the wars in Iraq and Afghanistan—and the Bush administration itself—became more unpopular. But journalists and news executives, including myself, were still able to engage knowledgeable officials at the highest levels of the administration in productive dialogue, including discussions of sensitive stories about classified national security activities. “The Bush administration had a worse reputation,” Marcus Brauchli, my immediate successor as executive editor of The Washington Post, told me, “but, in practice, it was much more accepting of the role of journalism in national security.”
And not just in national security. Ellen Weiss, Washington bureau chief for E.W. Scripps newspapers and stations, said “the Obama administration is far worse than the Bush administration” in trying to thwart accountability reporting about government agencies. Among several examples she cited, the Environmental Protection Agency “just wouldn’t talk to us” or release records about environmental policy review panels “filled by people with ties to target companies.”
Obama promises transparency
Obama, who during the 2008 campaign had criticized the “excessive secrecy” of the Bush administration, came into the Oval Office promising an unprecedentedly open government. By the end of his first full day there on January 21, 2009, he had issued directives to government agencies to speed up their responses to Freedom of Information Act requests and to establish “Open Government Initiative” websites with information about their activities and the data they collect.
The government websites turned out to be part of a strategy, honed during Obama’s presidential campaign, to use the Internet to dispense to the public large amounts of favorable information and images generated by his administration, while limiting its exposure to probing by the press. Veteran political journalists Jim VandeHei and Mike Allen described the administration’s message machine this way on the news website Politico: “One authentically new technique pioneered by the Obama White House is government creation of content—photos of the president, videos of White House officials, blog posts written by Obama aides—which can then be instantly released to the masses through social media. And they are obsessed with taking advantage of Twitter, Facebook, YouTube and every other social media forum, not just for campaigning, but governing. They are more disciplined about cracking down on staff that leak, or reporters who write things they don’t like.”
A senior White House official told me, “There are new means available to us because of changes in the media, and we’d be guilty of malpractice if we didn’t use them.” The official said that, for example, the White House often communicated brief news announcements on Twitter to the more than 4 million followers of @whitehouse.
“Some of you have said that I’m ignoring the Washington press corps—that we’re too controlling,” Obama jokingly told assembled journalists at the annual Gridiron Dinner in Washington in March. “Well, you know what? You were right. I was wrong, and I want to apologize in a video you can watch exclusively at whitehouse.gov,” one of the administration’s websites.
“There is no access to the daily business in the Oval Office, who the president meets with, who he gets advice from,” said ABC News White House correspondent Ann Compton, who has been covering presidents since Gerald Ford. She said many of Obama’s important meetings with major figures from outside the administration on issues like health care, immigration, or the economy are not even listed on Obama’s public schedule. This makes it more difficult for the news media to inform citizens about how the president makes decisions and who is influencing them.
“In the past,” Compton told me, “we would often be called into the Roosevelt Room at the beginning of meetings to hear the president’s opening remarks and see who’s in the meeting, and then we could talk to some of them outside on the driveway afterward. This president has wiped all that coverage off the map. He’s the least transparent of the seven presidents I’ve covered in terms of how he does his daily business.”
Instead of providing greater access for reporting by knowledgeable members of the press, Compton noted, the Obama White House produces its own short newscast, “West Wing Week,” which it posts on the White House website. “It’s five minutes of their own video and sound from events the press didn’t even know about,” she said.
“When you call the White House press office to ask a question or seek information, they refer us to White House websites,” said Chris Schlemon, Washington producer for Britain’s Channel 4 television news network. “We have to use White House website content, White House videos of the president’s interviews with local television stations and White House photographs of the president.”
The Obama administration is using social media “to end run the news media completely,” Sesno at George Washington University told me. “Open dialogue with the public without filters is good, but if used for propaganda and to avoid contact with journalists, it’s a slippery slope.”
Brushing off such concerns as special pleading from the news media, a senior administration official told me that White House videos of otherwise closed meetings, for example, provide the public with “a net increase in the visibility of these meetings.” Several reporters told me that the White House press office and public affairs officials in many government agencies often don’t respond to their questions and interview requests or are bullying when they do. “In the Obama administration, there is across-the-board hostility to the media,” said veteran Washington correspondent and author Josh Meyer, who reports for the Atlantic Media national news website Quartz. “They don’t return repeated phone calls and e-mails. They feel entitled to and expect supportive media coverage.”
Reporters and editors said they often get calls from the White House complaining about news content about the administration. “Sometimes their levels of sensitivity amaze me—about something on Twitter or a headline on our website,” said Washington Post Managing Editor Kevin Merida.
Obama press secretary Carney, who had covered the White House for Time magazine, minimized such complaints as being part of a “natural tension” in any administration’s relationship with the press. “That’s not new. I was yelled at by people during the Clinton and Bush administrations,” he told me.
“The Obama people will spend an hour with you, off the record, arguing about the premise of the story,” said Josh Gerstein, who covers the White House and its information policies for Politico. “If the story is basically one that they don’t want to come out, they won’t even give you the basic facts.”
Eric Schmitt, national security correspondent of The New York Times, told me: “There’s almost an obligation to control the message the way they did during the campaign. More insidious than the chilling effect of the leaks investigations is the slow roll or stall. People say, ‘I have to get back to you. I have to clear it with public affairs.’”
“They’re so on message,” said Channel 4’s Schlemon. “I thought Bush was on message, but they’ve taken it to a whole new level.”
White House under pressure to stop leaks
As this information-control culture took root after Obama entered the White House in January 2009, his administration also came under growing pressure from U.S. intelligence agencies and congressional intelligence committees to stem what they considered an alarming accumulation of leaks of national security information. According to a New York Times story this summer, Obama’s first director of national intelligence, Dennis C. Blair, noted that during the previous four years 153 national security leaks had been referred by the intelligence agencies in “crime reports” to the Justice Department, but that only 24 had been investigated by the FBI, and no leaker had yet been prosecuted in those investigations.
“According to Mr. Blair,” The Times reported, “the effort got under way after Fox News reported in June 2009 that American intelligence had gleaned word from within North Korea of plans for an imminent nuclear test.” Blair told The Times that he and Attorney General Eric H. Holder Jr. then coordinated a more aggressive approach aimed at producing speedy prosecutions. “We were hoping to get somebody and make people realize that there are consequences to this and it needed to stop,” Blair told The Times. “It was never a conscious decision to bring more of these cases than we ever had,” Matthew Miller, Holder’s spokesman at the time, told me this summer. “It was a combination of things. There were more crime reports from the intelligence agencies than in previous years. There was pressure” from Capitol Hill, where Holder, Blair and other administration officials “were being harangued by both sides: ‘Why aren’t leakers being prosecuted? Why aren’t they being disciplined?’”
“Some strong cases,” inherited from the Bush administration, “were already in process,” Miller said. “And a number of cases popped up that were easier to prosecute” with “electronic evidence,” including telephone and e-mail records of government officials and journalists. “Before, you needed to have the leaker admit it, which doesn’t happen,” he added, “or the reporter to testify about it, which doesn’t happen.”
Leak prosecutions under Obama have been “a kind of slap in the face,” said Smith of the Center for Public Integrity. “It means you have to use extraordinary measures for contacts with officials speaking without authorization.”
Use of Espionage Act gathers steam
The first Obama administration prosecution for leaking information popped up quickly in April 2009, when a Hebrew linguist under contract with the FBI, Shamai K. Leibowitz, gave a blogger classified information about Israel. The administration has never disclosed the nature of the information, the identity of the blogger, or the government’s evidence in the relatively little-noticed case. Leibowitz pleaded guilty in May 2010, and was sentenced to 20 months in prison for a violation of the 1917 Espionage Act. It was the Obama administration’s initial use of a law passed during World War I to prevent spying for foreign enemies.
The campaign against leaks then gathered steam with Espionage Act prosecutions in two of the investigations inherited from the Bush administration.
In the first, NSA employee Thomas Drake was indicted on April 14, 2010, on charges of providing information to The Baltimore Sun in 2006 and 2007 about spending and management issues at the NSA, including disagreements about competing secret communications surveillance programs. Drake gave information to Siobhan Gorman, then a Sun reporter, including copies of documents that, in his view, showed the NSA had wrongly shelved a cheaper surveillance program with privacy safeguards for Americans in favor of a much more costly program without such safeguards. Drake and two of his NSA colleagues believed they were whistle-blowers who had first voiced their concerns within the NSA and to a sympathetic congressional investigator, to no avail. Gorman’s stories in the Sun angered government officials, including Gen. Michael Hayden, who was the NSA director when Drake objected to Hayden’s decision to switch the communications surveillance programs.
At the time when the Sun was publishing Gorman’s stories, the Bush administration’s investigation of the 2005 New York Times story about NSA warrantless communications surveillance had not found any leakers to prosecute. Apparently Drake, his NSA colleagues, and the congressional investigator to whom Drake had turned then became the focus of that investigation, even though they were never identified as sources for The Times. The homes of the other three—former NSA officials William Binney and J. Kirk Weibe and House Intelligence Committee staff member Diane Roark—were raided by armed federal agents on July 26, 2007. The raids frightened and angered them, but they were not prosecuted.
However, when Drake’s home was searched four months later, federal agents found copies of documents about the NSA programs that were the subjects of The Baltimore Sun stories. Drake volunteered to investigators that, acting as a whistle-blower, he had sent copies of documents and hundreds of e-mails to Sun reporter Gorman. Only after the Obama administration took office more than a year later, and the Justice Department became more aggressive in prosecuting leakers, was Drake indicted on 10 felony counts, including violations of the Espionage Act, for “willful retention of national defense information” and “making false statements” when he insisted to federal agents that the documents he had copies of were not secret.
Eventually, Drake’s lawyers and supporters showed that most of the information at issue was not classified or, as former Justice spokesman Miller told me, “other officials had been talking about the same things.” In June, as the government’s case “fell apart,” in Miller’s words, the federal prosecutor agreed not to seek a prison sentence for Drake in return for his guilty plea to the misdemeanor crime of misusing the NSA’s computer system. When Judge Richard D. Bennett sentenced Drake in Federal District Court to a year’s probation and 240 hours of community service, he said it was “unconscionable” that Drake and his family had endured “four years of hell” before the government dismissed its 10-count felony indictment. Drake, who was forced to resign from the NSA, now works in an Apple computer store.
Former NSA director Hayden told me that, despite his differences with Drake, the employee should never have been prosecuted under the Espionage Act. “He should have been fired for unauthorized meetings with the press,” Hayden said. “Prosecutorial overreach was so great that it collapsed under its own weight.”
Whatever his role in the NSA’s internal rivalries at the time, Drake appears to be a whistle-blower whose information about the secretive agency’s telecommunications surveillance methods should have resulted in greater government accountability at the time, rather than a criminal prosecution for spying.
Who is a whistle-blower?
In the second investigation inherited from the Bush administration, former CIA officer Jeffrey Sterling was indicted on Dec. 22, 2010, and arrested on Jan. 6, 2011, on charges of providing New York Times reporter James Risen with extensive information about a failed CIA effort to sabotage Iran’s nuclear program. The Times never published a story about it, but the information appeared to be the basis for a chapter in Risen’s 2006 book, State of War. Sterling, who is black, had unsuccessfully sued the CIA for discrimination after he lost his job there.
Years of communications records for the two men were subpoenaed and seized during the government’s investigation—and itemized in Sterling’s indictment. They showed dozens of telephone calls and e-mails between Sterling and Risen, beginning in 2002, when Risen wrote in The Times about Sterling’s allegations of racial discrimination when he worked on the CIA’s Iran task force. In hindsight, it was the first clear evidence that the Justice Department was digging into the phone and e-mail records of both government officials and journalists while investigating leaks.
“Jeffrey Sterling is not a whistle-blower,” Miller, the former Justice Department spokesman, insisted to me, even though Sterling, whatever his motive, apparently was knowledgeable about significant problems plaguing the CIA at the time. “He was fired for cause. He went to court and the case was thrown out. No waste, fraud, or abuse was involved.”
This is a disturbing distinction that the Obama administration has made repeatedly. Exposing “waste, fraud and abuse” is considered to be whistle-blowing. But exposing questionable government policies and actions, even if they could be illegal or unconstitutional, is often considered to be leaking that must be stopped and punished. This greatly reduces the potential for the press to help hold the government accountable to citizens.
Beginning in early 2008, the Justice Department repeatedly tried to subpoena Risen to testify against Sterling in what has become a long-running legal battle closely watched by journalists and media lawyers. In support of the latest subpoena, filed in April 2010, Justice argued that “James Risen is an eyewitness to the serious crimes with which the grand jury charged Sterling.”
In July 2011, Judge Leonie Brinkema ruled in Federal District Court that, while Risen must testify to the accuracy of his reporting, he could not be compelled by the government to reveal his source. She concluded that courts, dating back to the U.S. Supreme Court’s divided ruling in Branzburg v. Hayes in 1972, had, in effect, established a qualified privilege under the First Amendment that protects reporters against identifying their sources if their need to protect their sources’ identities to do their reporting outweighs the government’s need for the reporters’ testimony to establish its case. It was the first time a reporter had successfully invoked such a privilege at the grand jury and trial stages of a federal prosecution.
The Obama administration appealed Brinkema’s decision, leaving the Sterling trial in limbo. A coalition of 29 news organizations and related groups came forward to support Risen, a two-time winner of the Pulitzer Prize for journalism. In an appellate brief, they pointed to the many significant national security and government accountability news stories over the years that could not have been reported by the press without confidential sources.
However, in July this year, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., reversed Brinkema’s decision from two years earlier. A 2-to-1 majority ruled that the First Amendment did not protect Risen from being forced to testify against his source. Also citing Branzburg, Chief Judge William Byrd Traxler wrote: “Clearly, Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this testimony.”
Ominously, perhaps, Traxler added that Risen “is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information.”
Dissenting, Judge Roger Gregory argued that the decision could be a serious blow to investigative journalism. “The majority exalts the interests of the government while unduly trampling those of the press,” he wrote, “and, in doing so, severely impinges on the press and the free flow of information in our society.”
Risen asked the full 15-judge appellate court to review the case, and he vowed to go to jail rather than identify his source. Backed once again by many press organizations, he also formally asked the Justice Department to withdraw the subpoena. The Justice Department has continued to press for enforcement of the subpoena by asking the full appellate court not to hear further arguments in the case.
Manning case is a turning point
The Obama administration’s next prosecution originated with a June 11, 2009, story on the Fox News network’s website. Fox News’s chief Washington correspondent, James Rosen, reported that U.S. Intelligence had discovered that North Korea was planning, in defiance of the United Nations, to escalate its nuclear program and conduct another nuclear weapons test. The Justice Department soon began a secret investigation, which produced an August 19, 2010, felony indictment of Stephen Jin-Woo Kim, a State Department contract analyst. He was charged with violating the Espionage Act by giving classified intelligence information about North Korea to Rosen, who was not named in the indictment.
The indictment of Kim contained just two bare-bones paragraphs—the tip of an iceberg of secret investigations on which the Obama administration and the press would collide resoundingly nearly three years later.
Overshadowing the Kim case at the time was the arrest in May 2010 of Manning, the Army private, in the most voluminous leak of classified documents in U.S. history. Manning was an emotionally troubled young soldier concerned about U.S. conduct in the wars in Iraq and Afghanistan. Manning used computer access as an Army intelligence analyst in Baghdad to download an enormous amount of classified information and give it to the anti-secrecy group Wikileaks. The data included more than 250,000 U.S. State Department diplomatic cables, 500,000 U.S. Army incident reports from the two wars, dossiers on terrorist suspects detained at Guantánamo Bay, and videos of two American airstrikes that killed civilians in Iraq and Afghanistan.
News media throughout the world published scores of stories based on the documents obtained through Wikileaks during 2010 and 2011. The State Department cables contained American diplomats’ unvarnished views of numerous countries’ government and diplomatic activities. The military logs detailed troubling issues, including civilian deaths, in waging the wars in Iraq and Afghanistan. While news organizations did further reporting for what they published, and decided to leave out some names and other details after talking to government officials, Wikileaks posted unredacted documents on its own website, exposing, among other things, the identities of foreign nationals in contact with U.S. embassies around the world.
Manning was eventually charged in a military court with 22 offenses, including violations of the Espionage Act, and pleaded guilty in February 2013 to 10 of the lesser charges of accessing and communicating classified information. The government nevertheless continued to pursue the prosecution, and Manning was convicted by a military judge in July of the rest of the charges, except the most serious offense under the Uniform Code of Military Justice—aiding the enemy. In August, the court-martial judge, Col. Denise R. Lind, sentenced Manning to 35 years in prison. With credit for time served awaiting the trial and verdict, she could be eligible for parole in seven years. It was a long sentence for leaking classified information, as extensive as it was, to news media, rather than spying for a foreign government.
The Manning case appears to have been another turning point. “After Wikileaks, the administration got together and decided we’re not going to let this happen again,” said Lucy Dalglish, who monitored developments closely while director of the Reporters Committee for the Freedom of the Press. “Prosecution under the 1917 Espionage Act is almost their only tool,” she told me. “They’re sending a message. It’s a strategy.”
Dalglish, now dean of the Philip Merrill College of Journalism at the University of Maryland, along with Danielle Brian of the Project on Government Oversight (POGO) and other longtime government transparency advocates, met with President Obama in the Oval Office on March 28, 2011, to thank him for his frequent promises about transparency and early actions on open government. They used the opportunity to explain why they thought much more needed to be done. According to Brian’s written account in the POGO blog the next day, the president seemed sympathetic to the issues they raised, including the over-classification of government information as secret.
But when Brian brought up “the current aggressive prosecution of national security whistle-blowers” and the “need to create safe channels for disclosure of wrongdoing in national security agencies,” she wrote, “The president shifted in his seat and learned forward. He said he wanted to engage on this topic because that may be where we have some differences. He said he doesn’t want to protect the people who leak to the media war plans that could impact the troops. He differentiated these leaks from those whistle-blowers exposing a contractor getting paid for work they are not performing.”
Dalglish told me there was a follow-up meeting at the White House in June 2011, with national security journalists and lawyers from the director of national intelligence, CIA, FBI and the Pentagon. But they made little progress. “When the journalists said that in the past you could negotiate with agencies” about national security information, “there was no real response,” Dalglish recalled. When they asked, with the Risen subpoena in mind, about a proposed federal shield law that could protect reporters from being forced to identify their sources, Dalglish said, the lawyers told them, “You can get a shield law, but you’ve probably seen your last subpoena. We don’t need you anymore.”
Another leaker’s motives in question
On October 7, 2011, the Obama White House launched an ambitious new effort to curb leaks. “Following the unlawful disclosure of classified information by Wikileaks,” it announced, “the National Security Staff formed an interagency committee to review the policies and practices surrounding the handling of classified information, and to recommend government-wide actions to reduce the risk of a future breach.” An accompanying executive order from the president established an Insider Threat Task Force to develop within a year “a government-wide program for insider threat detection and prevention to improve protection and reduce potential vulnerabilities of classified information from exploitation, compromise, or other unauthorized disclosure.”
Meanwhile, the administration launched another Espionage Act prosecution. Former CIA officer John Kiriakou was indicted on April 5, 2012, on five felony counts accusing him of disclosing classified information, including the names of two CIA agents, to freelance journalist Matthew Cole and to New York Times reporter Scott Shane. Kiriakou, who retired from the CIA in 2004, had led the team that located and captured senior Al Qaeda operative Abu Zubaydah in 2002 in Pakistan. He became a sought-after news source—and a bête noire for the CIA—after a 2007 ABC News television interview in which he confirmed that Zubaydah had been water-boarded during his interrogation. Kiriakou said he believed the measure was necessary, legal, and effective, but probably constituted torture that should not be used again.
Amid his many subsequent media appearances and contacts with journalists, Kiriakou discussed a covert CIA agent with Cole, who, in turn, discussed the agent with a researcher for defense lawyers for Al Qaeda suspects detained at Guantánamo Bay. Later, Kiriakou confirmed to Shane the identity of a former CIA officer, Deuce Martinez, who was involved in the Zubaydah interrogation. Shane told me that Kiriakou had showed him a non-CIA private business card for Martinez, whom Shane was trying to locate. “Martinez had been undercover, but he had asked that he no longer be, and he wasn’t,” said Shane, who wrote a detailed Times story about “enhanced interrogations” of terrorist suspects, which stated that Martinez had declined to be interviewed.
When government officials discovered that the Guantánamo defense lawyers were identifying CIA witnesses to their clients’ interrogation, the agency filed a crime report that prompted a Justice Department investigation. A defense lawyer and a researcher, who had been targets of the inquiry, were eventually cleared of any illegality. Instead, the investigation turned into a criminal leaks case after investigators seized scores of e-mails between Kiriakou and journalists. They revealed Kiriakou as both Cole’s source of the identity of the covert CIA agent and a frequent contact of Times reporter Shane. In a plea bargain, Kiriakou admitted guilt on October 22, 2012, to a single count of violating the Intelligence Identities Protection Act for giving the covert CIA agent’s name to Cole. In return, the other charges, including three counts of violating the Espionage Act, were dropped. Kiriakou was sentenced to 30 months in prison.
Once again, there was disagreement about the leaker’s motivation in a questionable espionage case. Kiriakou and his supporters characterized him as a patriotic, if self-promoting, whistle-blower who exposed abusive interrogation methods later condemned as torture, while none of the government officials responsible for them had been punished. However, Judge Brinkema said in sentencing Kiriakou, “this is not a case of a whistle-blower” because of the seriousness of revealing the identity of a covert intelligence officer.
In a statement to CIA employees the day after Kiriakou’s sentencing, David H. Petraeus, then the CIA director, made clear the administration’s intentions. “The case yielded the first successful prosecution”—under the Intelligence Identities Protection Act—“in 27 years, and it marks an important victory for our agency, for our intelligence community, and for the country,” Petraeus told them. “Oaths do matter, and there are indeed consequences for those who believe they are above the laws that protect our fellow officers and enable American intelligence agencies to operate with the requisite degree of secrecy.”
The chilling lesson for reporters and sources, The Times’s Shane told me, contrary to Petraeus, “is that seemingly innocuous e-mails not containing classified information can be construed as a crime.”
Journalist and author Steve Coll, now dean of the Columbia School of Journalism, raised questions about the case in a New Yorker magazine article last April. “Which matters more: Kiriakou’s motives or his reliability, or the fact that, however inelegantly, he helped to reveal that a sitting president”—George W. Bush—“had ordered international crimes?” Coll asked. “Does the emphasis on the messenger obscure the message?” There is no “perfect solution to this problem” of how to protect necessary secrets while informing citizens about their government, Jack Goldsmith, the Harvard Law professor and former Bush administration lawyer, told me. “Too much secrecy and too much leaking are both bad.” he said. “A leaker has to be prepared to subject himself to the penalties of law, but leaks can serve a really important role in helping to correct government malfeasance, to encourage government to be careful about what it does in secret and to preserve democratic processes.”
Climate of fear sets in
The next escalation in the Obama administration’s war on leaks had already been prompted by a May 7, 2012, Associated Press story revealing the CIA’s success in penetrating a Yemen-based group, Al-Qaeda in the Arabian Peninsula, that had developed an improved “underwear bomb” improvised explosive device (IED) for a suicide bomber to detonate aboard U.S.-bound aircraft. At the request of the White House and the CIA, the AP had held the story for five days to protect continuing aspects of the covert operation. The AP’s discussions with government officials were similar to many I had participated in with several administrations during my years as executive editor of The Washington Post, when I was deciding how to publish significant stories about national security without causing unnecessary harm.
After the AP story first appeared on its wire service, the White House spoke freely about it on the record, publicly congratulating the CIA. Intelligence officials, however, were angry that the AP story and subsequent reporting had revealed their covert operation in Yemen. “The irresponsible and damaging leak of information was made,” CIA Director John Brennan later told Congress, “when someone informed The Associated Press that the U.S. had intercepted an IED that was supposed to be used in an attack and that the U.S. government currently had the IED in its possession and was studying it.” Brennan said that he had himself been questioned by the FBI in the investigation of the leak.
Then, on June 1, 2012, The New York Times published a story by David E. Sanger describing a covert operation code-named Olympic Games, in which a computer worm called Stuxnet, developed by the U.S. and Israel, had been used in cyberattacks on the computer systems running Iran’s main nuclear enrichment facilities. Sanger also detailed the operation in his book, Confront and Conceal, published at the same time.
Even though the existence of the worm was already known because a computer error had sent it around the world two years earlier, the details in Sanger’s story and book helped cause political trouble for Obama. Republicans in Congress and conservative pundits loudly accused the administration of purposely leaking classified information used in the AP and New York Times stories to embellish Obama’s counterterrorism credentials in an election year.
The Justice Department responded by opening aggressive investigations to find and prosecute the unnamed sources of both stories. Rejecting Republican calls for special prosecutors, Attorney General Holder assigned two senior U.S. attorneys to run the investigations. The New York Times reported that federal prosecutors and the FBI questioned scores of officials throughout the government who had knowledge of either covert operation or who were identified in computer analyses of phone, text, and e-mail records as having any contact with the journalists involved.
“A memo went out from the chief of staff a year ago to White House employees and the intelligence agencies that told people to freeze and retain any e-mail, and presumably phone logs, of communications with me,” Sanger told me. As a result, he said, longtime sources would no longer talk to him. “They tell me, ‘David, I love you, but don’t e-mail me. Let’s don’t chat until this blows over.’”
The director of national intelligence, James Clapper, announced on June 25, 2012, his own internal steps to stem leaks. Employees of all 16 U.S. intelligence agencies—including the CIA, NSA, FBI and Defense Intelligence Agency—would be asked during routine polygraph examinations whether they had disclosed any classified information to anyone. And the new inspector general for the Intelligence Community, with jurisdiction over all its agencies, would investigate leak cases that had not produced prosecutions by the Justice Department to determine what alternative action should be taken. A classified report from the inspector general to Clapper, obtained about the same time by the Federation of American Scientists’ Project on Government Secrecy, showed that the inspector general was already reviewing 375 unresolved investigations of intelligence agency employees.
Five months later, on November 21, 2012, after a year’s planning by its Insider Threat Task Force, the White House issued a presidential memorandum instructing all federal government departments and agencies to set up Insider Threat Programs to monitor employees with access to classified information and prevent “unauthorized disclosure.” According to the National Insider Threat Policy, each agency must, among other things, develop procedures “ensuring employee awareness of their responsibility to report, as well as how and to whom to report, suspected insider threat activity.” Officials cited the Manning case as the kind of threat the program was intended to prevent.
A survey of government department and agencies this summer by the Washington bureau of the McClatchy newspapers found that they had wide latitude in defining what kinds of behavior constituted a threat. “Government documents reviewed by McClatchy illustrate how some agencies are using that latitude to pursue unauthorized disclosures of any information, not just classified material,” it reported in June. “They also show how millions of federal employees and contractors must watch for ‘high-risk persons or behaviors’ among co-workers and could face penalties, including criminal char