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.”