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.’”