[Infowarrior] - WaPo: The Unaccountable President

[Richard Forno]

Washington Post
May 26, 2013 

Obama, The Unaccountable President

http://www.washingtonpost.com/opinions/leonard-downie-obamas-war-on-leaks-undermines-investigative-journalism/2013/05/23/4fe4ac2e-c19b-11e2-bfdb-3886a561c1ff_story.html

The Post's Leonard Downie Jr. says the administration's war on leaks hurts
investigative journalism

For the past five years, beginning with his first presidential campaign,
Barack Obama has promised that his government would be the most open and
transparent in American history. Recently, while stating that he makes "no
apologies" for his Justice Department's investigations into suspected leaks
of classified information, the president added that "a free press, free
expression and the open flow of information helps hold me accountable, helps
hold our government accountable and helps our democracy function." Then, in
his National Defense University speech Thursday, Obama said he was "troubled
by the possibility that leak investigations may chill the investigative
journalism that holds government accountable."

But the Obama administration's steadily escalating war on leaks, the most
militant I have seen since the Nixon administration, has disregarded the
First Amendment and intimidated a growing number of government sources of
information - most of which would not be classified - that is vital for
journalists to hold leaders accountable. The White House has tightened its
control over officials' contacts with the news media, and federal agencies
have increasingly denied Freedom of Information Act requests on the grounds
of national security or protection of internal deliberations.

The secret and far-reaching subpoena and seizure of two months of records
for 20 Associated Press phone lines and switchboards - used by more than 100
AP reporters in three news bureaus and the House of Representatives - is
especially chilling for journalists and their sources. The effort was
reportedly part of a Justice Department and federal grand jury investigation
of an AP story from May 7, 2012, revealing the CIA's success in penetrating
a Yemen-based al-Qaeda group that had developed an "underwear bomb" to
detonate aboard U.S.-bound aircraft.

At the request of the White House and the CIA, the AP held the story for
five days to protect an ongoing intelligence operation. The AP's discussions
with government officials were similar to many I participated in with
several administrations during my years as executive editor of The
Washington Post, when I was weighing how to publish significant stories
about national security without causing unnecessary harm.

After the AP story appeared, Obama administration officials spoke freely
about the operation. But when Republicans accused the administration of
leaking classified information to boost the president's counterterrorism
resume in an election year, the Justice Department began its wide-ranging
investigation to find the story's unnamed sources - including secretly
subpoenaing and seizing the AP's call logs earlier this year. Only after
Justice finally notified the news agency of the seizure this month and the
controversy exploded did Attorney General Eric Holder say that the AP story
resulted from "a very, very serious leak" that "put the American people at
risk." But the administration has not explained how.

Such investigations are not unusual, especially in national security cases,
but they have proliferated in the Obama administration. Six government
officials have been prosecuted since 2009 under the 1917 Espionage Act for
unauthorized disclosures of classified information, twice as many as in all
previous U.S. administrations combined. One case involved a classic
whistleblower: a senior executive of the National Security Agency who had
told the Baltimore Sun about expensive government waste on digital
data-gathering technology.

In another, investigators seized the phone records of Fox News reporter
James Rosen, searched his personal e-mails, tracked his visits to the State
Department and traced the timing of his phone conversations with Stephen
Jin-Woo Kim, a State Department security adviser. Kim was charged in 2010 as
the suspected source of a Fox News report about North Korean nuclear weapon
testing. Perhaps most disturbing, documents related to the secret search
warrant for Rosen's phone and e-mail records cited him as a co-conspirator
in the espionage case.

This appeared to journalists to put Rosen in unprecedented jeopardy for
doing his job. Although the president said in his speech Thursday that
"journalists should not be at legal risk for doing their jobs," he was
nevertheless adamant about pursuing government officials who he said "break
the law," presumably by discussing national security matters and other
classified information with reporters, even if that scares off officials
from becoming whistle-blowers or even having any contact with reporters.

In addition to these investigations and others believed to be underway,
countless government officials have been subjected to accusatory interviews
and lie-detector tests to ferret out leakers. And contacts with journalists
have been routinely monitored. Not surprisingly, reporters tell me that more
and more administration officials are afraid to talk to them.

Decades-old Justice Department guidelines restrict federal subpoenas for
reporters or their phone records, saying they should be used only as a last
resort in an investigation. Justice officials have contended that this was
the case with the Associated Press leak. But while claiming that it first
conducted hundreds of interviews and reviewed tens of thousands of
documents, Justice has not explained why it needed to undertake what appears
to be a menacing and unjustified fishing expedition.

The Justice guidelines require that "the subpoena should be as narrowly
drawn as possible," that the targeted news organization "shall be given
reasonable and timely notice" to negotiate the subpoena with Justice or to
fight it in court, and that "the approach in every case must be to strike
the proper balance between the public's interest in the free dissemination
of ideas and information and the public's interest in effective law
enforcement and the fair administration of justice."

Only half a dozen AP journalists reported, wrote and edited the May 7, 2012,
story, but "thousands upon thousands of news-gathering calls" by more than
100 AP journalists using newsroom, home and mobile phones are included in
the records seized by Justice investigators, AP President Gary B. Pruitt
said in an interview with CBS's "Face the Nation." In a letter of protest to
Holder, Pruitt said that "these records potentially reveal communications
with confidential sources across all of the newsgathering activities
undertaken by the AP during a two-month period, provide a road map to AP's
newsgathering operations and disclose information about AP's activities and
operations that the government has no conceivable right to know."

Without any official justification, such an indiscriminate intrusion into
one of the most important American news organizations appears to be a
deliberate attempt to intimidate journalists and their sources - or at least
indicates a willingness to tolerate such intimidation as collateral damage
of an investigation.

"I really don't know what their motive is," Pruitt said on "Face the
Nation." But, he added, "I know what the message being sent is: If you talk
to the press, we're going to go after you."

By secretly serving the subpoena directly on phone companies without
notifying the AP, the Justice Department avoided negotiations with the news
agency or a court challenge over its scope. This is permitted as an
exception to the Justice guidelines if prior notification and negotiations
would "pose a substantial threat to the integrity of the investigation." But
there has been no explanation of what threat might have been posed in this
case, when the preservation of the records by the phone companies was never
in question and the news leak under investigation had occurred long before.

I can remember only one similar incident during my 17 years as executive
editor of The Post. In 2008, FBI Director Robert S. Mueller formally
apologized to me and the executive editor of the New York Times for the
secret seizure four years earlier of the phone records of our foreign
correspondents working in Jakarta, Indonesia - because the Justice
guidelines had been violated and no subpoena had been issued. But I recall a
number of instances in which other federal investigative requests were
successfully negotiated in ways that fully protected our news-gathering
independence in accordance with the guidelines.

In Thursday's speech, Obama said he has raised the impact of federal leaks
investigations on accountability journalism with Holder. The president said
the attorney general "agreed to review existing Department of Justice
guidelines governing investigations that involve reporters, and he'll
convene a group of media organizations to hear their concerns as part of
that review."

The president also called on Congress to revive and pass a federal "shield
law" - similar to those in 40 states and the District - that would increase
defenses, including judicial appeals, for journalists who face legal
attempts to force them to reveal confidential sources and reporting
contacts. It is unclear whether the legislation, which stalled in the last
Congress after negotiations with the news media, would have prevented the
Justice Department's sneak attack against the AP. Nevertheless, its passage
would provide significant new protection for accountability journalism and
government whistleblowing. White House support of the legislation had been
lukewarm, so the timing and ardor of Obama's new embrace remains suspect,
depending on the administration's future actions.

I can only speculate about the politics at play here. If 2012 had not been a
presidential election year, would Republicans have characterized news
reports and Obama administration announcements about successful
counterterrorism operations as "leaks" endangering national security? Would
the administration have decided that it was necessary to react by
aggressively investigating leaks for which there is not yet public evidence
that national security was seriously compromised? If not for the 2014
congressional elections, would Republicans now be hypocritically condemning
the Justice Department's seizure of phone records in the AP case?

Hardly anything seems immune from constitutionally dangerous politicking in
a polarized Washington. But that's no excuse for playing games with the
First Amendment and the right and responsibility of the news media to keep
Americans informed about what their government is doing in their name and
for their protection.

After the 2001 terrorist attacks, the George W. Bush administration
increased government secrecy in a variety of ways that Obama, as candidate
and president, vowed to reverse. Soon after taking office, Obama and Holder
issued memos and directives instructing government agencies to be more
responsive to Freedom of Information Act (FOIA) requests and to make more
government information public through Web sites and social media.

On the plus side, more government information is now available online, much
of it "big data" collected and generated by federal agencies. Some of it is
potentially useful for consumers and businesses, such as student loan and
grant information, resources for seniors, ways to do business with the
government, federal jobs, volunteer opportunities, diet and medical
information, assistance for farming and solar energy development, and much
more. Some of the data about government spending and regulations also are
useful for the news media and accountability reporting.

But there's not nearly enough of what journalists and citizens need to hold
the government truly accountable - whether information on national security,
government surveillance and immigration policies, or specifics about
stimulus spending and officials' travel and other perks.

After some initial improvement by the Obama administration in fulfilling
FOIA requests, delays and denials are growing again, according to
journalists and studies by news organizations. An AP analysis published in
March found that "more often than it ever has, [the Obama administration]
cited legal exceptions to censor or withhold the material" and "frequently
cited the need to protect national security and internal deliberations."
Some of the administration's new open-information policies also contain
broad and vague exceptions that could be used to hide records crucial to
accountability reporting about such subjects as health-care payments,
government subsidies, workplace accidents or detentions of terrorism
suspects.

Every administration I remember has tried to control its message and manage
contacts with the media. As a senior editor for more than a quarter-century,
I frequently received complaints from administrations of both parties about
coverage they considered unfavorable, along with occasional and mostly empty
threats to cut off access. Journalists who covered the George W. Bush
administration said they encountered arrogant attitudes toward the press but
were usually able to engage knowledgeable officials in productive dialogue.

But reporters covering the Obama administration say more and more officials
will no longer talk at all and refer them to uncommunicative or even hostile
and bullying press aides. "The White House doesn't want anyone leaking,"
said one senior Washington correspondent who, like others, described a
tight, difficult-to-penetrate inner circle that controls the
administration's decisions and micromanages its message. "There are few
windows on decision-making and governing philosophy. There is a perception
that Obama himself has little regard for the news media."

Continuing what worked so successfully during two presidential election
campaigns, Obama and his administration have instead engaged citizens
directly through social media, friendly bloggers, radio and video. It
amounts to the White House reporting on itself, presenting an appearance of
greater openness while avoiding penetrating questions from journalists who
have the knowledge and experience to do meaningful accountability reporting.
The administration's media manipulation extends even to photography:
Professional photojournalists are banned from many White House events and
presidential activities; only approved images of Obama taken by a White
House photographer are supplied to the news media.

Most Americans may not care much about the Obama administration's openness
to the news media or the potential damage to the First Amendment and
government accountability resulting from its aggressive war on leaks. But as
the administration copes with second-term governing challenges, real
national security threats and darkening clouds of scandal, its credibility
will become increasingly important to the president's legacy. It is not too
late for Obama's actions to match his rhetoric.


Leonard Downie Jr. is a vice president at large of The Washington Post,
where he served as executive editor from 1991 to 2008. He is the Weil family
professor of journalism at the Walter Cronkite School of Journalism at
Arizona State University and a board member of the nonprofit group
Investigative Reporters and Editors.
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