Sources and secrets

An event at the Times Center discussed whether journalists reporting on government secrets are more prosecuted than in eras past

Has the War on Terror turned into a War on Journalists? Yes, according to speakers from some of the most prestigious print outlets in the country. They considered the issue at “Sources and Secrets,” a George Polk Awards conference, hosted by The New York Times, on Friday that examined the relationship of the press and government in covering national security.

The five panels, plus an interview with US Sen. Chuck Schumer and an opening address by Times reporter James Risen, who has asked the Supreme Court to rule on his refusal to reveal anonymous sources, happened before a small but influential audience at the Times Center on 41st Street. The crowd was filled with professors, lawyers, and reporters, including three from The Huffington Post.

It felt at times like a call to arms for the press. Risen argued that the government, “is trying to create a path for accepted reporting,” and punishing those who stray out of line. Some speakers, though, warned against the temptation to turn into Chicken Little. “It’s important to be realistic about whether the sky is falling,” said Jeffrey Toobin, The New Yorker’s legal correspondent. “The number of journalists prosecuted by Obama administration under the Espionage Act is zero, as it has been for decades. The number of journalists incarcerated by Obama administration is zero.” (The number of journalists charged with crimes may be zero, but some reporters’ correspondence was seized as evidence in Espionage Act cases.)

New media outlets such as HuffPo were not heavily represented on the panels, which were filled with veterans of esteemed print outlets such as the Times, The New Yorker, and The Washington Post. For the most part, that probably reflects the fact that breaking news about secret government programs typically requires deeply experienced work in well-resourced newsrooms.

But there was one notable exception: First Look Media founder Glenn Greenwald and his colleague Laura Poitras skyped in for a chat with Times columnist Roger Cohen, and WaPo reporter Barton Gellman, also on Skype, who worked with them reporting on the documents the duo received from Edward Snowden. Greenwald, Poitras, and Gellman, will receive the Polk Award, along with collaborator Ewan MacAskill of The Guardian, on April 11. Although Greenwald fears prosecution for violation of the Espionage Act, he says he will eventually come back to the US—he is an American citizen living in Brazil—possibly to receive the award. “I intend to test the proposition that the US guards press freedom,” said Greenwald on Friday.

Poitras, who has previously been subject to detention and searches when entering the US, said she thinks it is more likely that she will subpoenaed and that her electronics will be confiscated if she comes back than that she will herself be charged with a crime.

That fear, of being subpoenaed to testify against a source, was the overriding concern expressed by every reporter speaking at the event. Under the Espionage Act of 1917, anyone with security clearance who reveals classified information can be prosecuted. There were three essential complaints repeated by multiple speakers: that too much information is classified, that such prosecutions for revealing it are becoming more common, and that they are done selectively, to punish those who embarrass the government while administration officials leak more favorable information with impunity.

“Someone has to play a checking role on the government,” warned David Shulz, a First Amendment lawyer who also spoke at a recent panel on post-Snowden journalism at Columbia. “If the government can keep anything secret, we’re going to wither and die as a society. When you have a system where secrecy is the norm, it doesn’t work, you don’t have oversight.”

Lawyers for the NSA who appeared at the event seemed to make two contradictory arguments in response: that a felony is a felony, and the Department of Justice cannot arbitrarily allow some to go unpunished because they are in the public interest, and, on the other hand, that the DOJ already does exactly that.

“Every day in newspapers across country there is classified information being reported,” said Kenneth L. Wainstein, former assistant attorney general for national security and homeland security advisor. “That is against the Espionage Act and could be prosecuted. The DOJ doesn’t do that. It goes after cases that are particularly egregious.”

But Robert L. Deitz,former general counsel for the NSA and senior councillor to the CIA director, made the opposite argument. “All these cases involve people who hypothetically committed a felony,” said Dietz. “It’s hard to say, ‘this felony shouldn’t be investigated.’ How do you put a line around this felony and say ‘I won’t worry about it, but we’re going to prosecute other felonies.’”

As New York Times reporter Mark Mazzetti pointed out, Dietz’s logic would imply that every time the CIA carries out a drone strike on a terrorist suspect that the official who boasts anonymously to reporters about it should be prosecuted. “They won’t stand up after a [drone] strike and say, ‘This is what happened.’ It’s still classified,” said Mazzetti. But, of course, they will anonymously tell reporters because they want credit for killing terrorists.

Dietz conceded the hypocrisy. “Official leaks make the administration lose the high ground,” he said. “It’s hard to explain why a senior administration official can leak but when it happens at the [civil servant] level the world is going to end.”

Reporters were unanimous in their view that even prosecuting leakers, not journalists themselves, makes it impossible to do reporting on national security. “When there are more risks for sources, there’s not a clear dividing line between them and the journalists. We get them in legal trouble—we put them at legal risk and that makes it very hard to get stories,” said Jane Mayer, a national security reporter for The New Yorker. “I had a source who was under investigation during the Bush administration. It ruined his life for awhile. It was very expensive for him to get legal counsel. It wasn’t just chilling; it was frozen.”

One measure that may help is a shield law. Proposed in the Senate by Schumer, it would exempt professional journalists from having to reveal sources. In order to get the requisite 60 votes, though, it has been weakened so that judges will decide between the journalist’s interests and the government’s in cases of national security. Even if the bill passes the Senate, it could easily die in the House, as most Republicans are opposed to it. Without a such a law, noted Toobin, “Journalists are citizens, journalists do not belong to a privileged caste that exempt us from the rules that apply to everyone else.”

One would get the sense from hearing the speakers that government efforts to protect its secrecy are the most intense they have ever been. But then, according to journalists, it is always the worst it’s ever been in the profession, whether the subject is salaries or government repression. Perhaps, some speakers noted, things are no worse than they were under Richard Nixon—admittedly damning with faint praise. “If James Risen is held in contempt and goes to jail, he’s not going to be first journalist to do so,” said Robert S. Litt, general counsel for the Director of National Intelligence. “It happens every 10 years or so.” And perhaps things weren’t worse, in, say, 1955 because the press was not trying as assiduously to spill the government’s secrets.

“The reason there weren’t subpoenas of journalists for 50 or 60 years after the Espionage Act [of 1917] is because the press had a cozier relationship with the government, and they didn’t report things,” said Litt. “That changed with Vietnam and Watergate, and the press institutionalized a more adversarial approach. I happen to think that’s a good thing, but it goes two ways. It’s the job of the press to find out things government doesn’t want it to. It’s the job of the government to stop the press from finding out those things.”

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Ben Adler is a staff writer for Grist and a contributor to CJR.