In Obama’s war on leaks, reporters fight back
By Leonard Downie Jr.,
Leonard Downie, a former executive editor of The Washington Post, is the Weil family professor of journalism at the Walter Cronkite School of Journalism at Arizona State University. This article is based on his report “The Obama Administration and the Press,” forthcoming Thursday from the Committee to Protect Journalists.
In the Watergate era, the Nixon administration’s telephone wiretaps were the biggest concern for journalists and sources worried about government surveillance. That was one of the reasons why Bob Woodward met with FBI official Mark Felt (a.k.a. “Deep Throat”) in an underground parking garage in Arlington, and why he and Carl Bernstein did much of their reporting by knocking on the front doors of their sources’ homes. Except for the aborted prosecution of Daniel Ellsberg for the leak of the Pentagon Papers, criminal culpability or pervasive surveillance were not major concerns, especially after Richard Nixon resigned the presidency in 1974.
Not so now. With the passage of the Patriot Act after the Sept. 11, 2001, terrorist attacks, a vast expansion of intelligence agencies and their powers, the aggressive exploitation of intrusive digital surveillance capabilities, the excessive classification of public documents and officials’ sophisticated control of the news media’s access to the workings of government, journalists who cover national security are facing vast and unprecedented challenges in their efforts to hold the government accountable to its citizens. They find that government officials are increasingly fearful of talking to them, and they worry that their communications with sources can be monitored at any time.
So what are they doing? Many reporters covering national security and government policy in Washington these days are taking precautions to keep their sources from becoming casualties in the Obama administration’s war on leaks. They and their remaining government sources often avoid telephone conversations and e-mail exchanges, arranging furtive one-on-one meetings instead. A few news organizations have even set up separate computer networks and safe rooms for journalists trained in encryption and other ways to thwart surveillance.
“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, a nonprofit accountability news organization. “It leaves a digital trail that makes it easier for government to monitor those contacts.”
“We have to think more about when we use cellphones, when we use e-mail and when we need to meet sources in person,” said Michael Oreskes, senior managing editor of the Associated Press. “We need to be more and more aware that government can track our work without talking to our reporters, without letting us know.”
These concerns, expressed by numerous journalists I interviewed, are well-founded. Relying on the 1917 Espionage Act, which was rarely invoked before President Obama took office, this administration has secretly used the phone and e-mail records of government officials and reporters to identify and prosecute government sources for national security stories.
Just two weeks ago, the Justice Department announced that Donald J. Sachtleben, a former FBI bomb technician who had also worked as a contractor for the bureau, had agreed to plead guilty to “unlawfully disclosing national defense information relating to a disrupted terrorist plot” in Yemen last year. “Sachtleben was identified as a suspect in the case of this unauthorized disclosure” to an Associated Press reporter, according to the announcement, “only after toll records for phone numbers related to the reporter were obtained through a subpoena and compared to other evidence collected during the leak investigation.”
The Justice Department secretly subpoenaed and seized from telephone companies two months of records for 20 AP phone lines and switchboards used by more than 100 reporters in four of its news bureaus. In other criminal leak investigations, the Obama administration has subpoenaed and seized records of telephone calls and e-mails between several New York Times reporters and government officials, between a Fox News reporter and a State Department contract analyst, and between two journalists and a former CIA officer.
Times reporter Scott Shane, whose e-mail traffic with the former CIA officer was seized, told me that the chilling lesson “is that seemingly innocuous e-mails not containing classified information can be construed as a crime.”
In addition to ongoing leak investigations, six government employees and two contractors, including fugitive NSA contractor Edward Snowden, have been prosecuted since 2009 under the Espionage Act for providing information to reporters about, among other subjects, the NSA’s communications surveillance, the CIA’s aggressive interrogation of terrorism suspects and, in the case of Army Pvt. Bradley Manning, diplomatic cables and Iraq and Afghanistan war documents.
Even though they violated laws governing classified information, many of the leakers could be characterized as whistleblowers rather than spies; they publicized actions for which the government should be held accountable. But the Obama administration has drawn a dubious distinction between whistleblowing that reveals bureaucratic waste or fraud, and leaks to the news media about unexamined secret government policies and activities; it punishes the latter as espionage.
“It was never a conscious decision to bring more of these cases than we ever had,” Matthew Miller, a former spokesman for Attorney General Eric H. Holder Jr., told me. “Some strong cases,” inherited from the Bush administration, “were already in process,” he said.
“And a number of cases popped up that were easier to prosecute” with “electronic evidence,” including phone and e-mail records. “Before, you needed to have the leaker admit it, which doesn’t happen,” Miller added, “or the reporter to testify about it, which doesn’t happen.”
Every disclosure to the press of classified information now triggers a leak investigation, said Washington Post national news editor Cameron Barr. “Investigations can be done electronically. They don’t need to compel journalists to reveal sources.”
The Post’s Justice Department reporter, Sari Horwitz, said a Justice official told her that “access to e-mail, phone records and cellphones make it easier to do now.”
After the New York Times published a 2012 story by David E. Sanger about covert cyberattacks by the United States and Israel against Iran’s nuclear enrichment facilities, federal prosecutors and the FBI questioned scores of officials throughout the government who were identified in computer analyses of phone, text and e-mail records as having contact with Sanger.
“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 said. As a result, longtime sources 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.’ ”
Sanger, who has worked for the Times in Washington for two decades, said, “This is most closed, control-freak administration I’ve ever covered.”
Many leak investigations include lie-detector tests for government officials with access to the information at issue. “Reporters are interviewing sources through intermediaries now,” Barr told me, “so the sources can truthfully answer on polygraphs that they didn’t talk to reporters.”
The investigations have been “a kind of slap in the face” for reporters and their sources, said Smith of the Center for Public Integrity. “It means you have to use extraordinary measures for contacts with officials speaking without authorization.”
In response to an uproar from journalists over the secret subpoenas and seizures of phone and e-mail records, the Justice Department somewhat tightened its guidelines for when and how reporters and their records can be subpoenaed. But it kept an exception for disclosures of classified information considered harmful to national security. And while Justice was working with the media on the guideline revisions, it was using the secretly seized AP phone records to identify and convict FBI contractor Sachtleben. In its announcement of his plea agreement, Justice vowed to continue making aggressive use of the national security exception.
“This prosecution demonstrates our deep resolve to hold accountable anyone who would violate their solemn duty to protect our nation’s secrets and to prevent future, potentially devastating leaks by those who would wantonly ignore their obligations to safeguard classified information,” it stated, adding that, “with these charges, a message has been sent that this type of behavior is completely unacceptable and no person is above the law.”
Obama and Holder have publicly endorsed a proposed federal shield law that would make it more difficult for the government to compel reporters to reveal sources or turn over records in federal investigations. But it also includes an exception for “classified leak cases when information would prevent or mitigate an act of terrorism or harm to national security,” as decided by a federal judge. In the view of Scott Armstrong, a former Post reporter who is now an independent journalist, the legislation wouldn’t protect national security reporters. “Federal agencies can still investigate us,” he said.
In November, a presidential memorandum instructed all government departments and agencies to set up pervasive “Insider Threat Programs” to monitor employees with access to classified information and to prevent “unauthorized disclosure,” including to the news media. According to the 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 leak as the kind of threat the program is intended to prevent.
A survey of government departments and agencies this summer by the Washington bureau of McClatchy newspapers found that they had wide latitude in defining what kinds of behavior constitute 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 charges, for failing to report them. Leaks to the media are equated with espionage.”
Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, told me that the Insider Threat Program 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.”
At the same time, revelations in the documents Snowden gave to The Post and Britain’s Guardian about the NSA’s collection, storage and searches of phone, text and e-mail data have added to the fear surrounding contacts between reporters and sources.
“People think they’re looking at reporters’ records,” Post national security reporter Dana Priest told me. “I’m writing fewer things in e-mail. I’m even afraid to tell officials what I want to talk about because it’s all going into one giant computer.”
This fear transcends American shores, especially because NSA surveillance of non-American communications is authorized by U.S. law. All journalists at Britain’s BBC, for example, must now take training in information security, according to Peter Horrocks, its director of global news.
“The nature of their work means journalists are often in touch with organizations representing extremist viewpoints and sources whose identities must be protected,” Horrocks said. Because of the sources’ awareness of the possibility of NSA surveillance, “the ability to communicate with them is potentially significantly compromised. Some won’t even consider talking to us.”
Will Obama recognize that all this threatens his often-stated but unfulfilled goal of making government more transparent and accountable? None of the Washington news media veterans I talked to were optimistic.
“Whenever 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, CBS 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.”