In his speech Thursday on national security, President Barack Obama said the right things about the media’s role as government watchdogs. Now the question is whether his administration’s actions will connect to his words.
Obama said that a free press is essential for our democracy: “I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable. Journalists should not be at legal risk for doing their jobs.”
You’d never guess it from his detached tone, but he was referring to two abusive leak investigations undertaken by his own Department of Justice. The more egregious was the FBI’s scrutiny of Fox News reporter James Rosen. The agency got a search warrant for Rosen’s emails in 2010 by swearing that there was probable cause to believe he violated the 1917 Espionage Act as a “co-conspirator” when he obtained information leaked by a State Department employee in 2009.
No federal law prohibits publishing leaked classified material, so the FBI got the warrant – and Attorney General Eric Holder personally signed off on it – by describing as criminal Rosen’s acquisition of the information. If that’s the criteria for criminality, journalists would risk prosecution at times simply by obtaining information from whistle-blowers. That’s a form of prior restraint — and a violation of the First Amendment right to a free press.
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The action against Rosen smacks more of intimidating journalists than in trying to plug a leak. The information the reporter disclosed — about how North Korea was likely to react to new sanctions — was not a big secret; in fact it was fairly common knowledge.
The Justice Department’s secret subpoena of Associated Press journalists’ phone records — both personal and professional — is also an outrageous intrusion on the First Amendment with potentially chilling effects on journalists and whistle-blowers.
The information the AP had — involving a CIA operation in Yemen — was much more sensitive than Rosen’s. But the AP agreed to sit on the story for several days after the administration warned that it could hurt national security. It was published only after the AP was told that was no longer the case.
Yet the administration still went after journalists’ phone records in trying to ferret out the leak. In fact, this administration has pursued twice as many leakers as all past administrations combined.
Much of the information on sensitive topics — everything from the Watergate break-in to the CIA’s secret prisons — has come from journalists working their sources and obtaining information from whistle-blowers disturbed by what they perceive to be abuses of power.
Obama says the DOJ will review its guidelines regarding investigations involving the media and will seek input from news organizations. And he says he now supports a media shield law his administration earlier opposed. Those are welcome starts.