Ask yourself this question: Is it sufficient to protect journalists who report classified information while sources go off to prison?
During the last half decade, a growing roster of national-security reporters has withstood government pressure to reveal confidential sources. They’ve done so with the steady support of news organizations and well-heeled groups that work to protect journalists from threats of jail. Yet those media outfits show scant interest in advocating for the whistleblowers who put themselves at risk. If they go to prison, c’est la vie.
The intertwined cases of New York Times reporter James Risen and former CIA officer Jeffrey Sterling point up the contrast. Risen got broad and repeated support from the media establishment; Sterling got none.
After seven years of government harassment and threats that began in early 2008, Risen prevailed with his steadfast refusal to identify any confidential source for his book State of War. But a year ago, a jury in CIA-friendly Northern Virginia convicted Sterling on multiple counts of the Espionage Act, accepting the prosecution’s claim that he had provided Risen with classified information for a chapter in the book, which included details about a botched CIA operation that provided faulty nuclear weapons design information to Iran.
Just after the verdict, the executive director of the Reporters Committee for Freedom of the Press told The New York Times: “The speed with which the jury reached its verdict shows that reporter’s testimony was not needed for the government to make its case. I think going forward this is going to be a powerful precedent.” Such comments were echoed in celebratory fashion by then-Attorney General Eric Holder and others eager to drive a bigger wedge between journalists and whistleblowers.
In the long run, the intimidation and prosecution of whistleblowers can only hobble investigative journalism. Yet for reporters, the professional norm is to act like solo practitioners who intrepidly run with the truth, without any need to support those charged with handing them the baton. Whistleblowers are left to fend for themselves.
It’s rare to find mainstream American journalists, much less ones near the top of the media power structure, willing to stick their necks out to defend individual whistleblowers. (To his credit, last month Risen went much farther than most prominent journalists when he wrote in a Twitter message: “President Obama should free the American whistleblowers he has imprisoned in the United States.”) To be fair, the media has written much about the Obama administration’s aggressive prosecution of leakers. But it’s usually to complain that these crackdowns make reporters’ jobs more difficult. Generally, the whistleblowers themselves are relegated to the status of non-persons.
Daniel Ellsberg, the first American ever prosecuted for leaking information, has closely tracked the legal, political and media dynamics of whistleblowing in the national-security arena ever since he was arrested for providing the Pentagon Papers to newspapers in 1971. Last spring, at a news conference in Washington sponsored by ExposeFacts (a program for independent journalism and whistleblowing that I coordinate), he commented that American journalists are apt to regard whistleblowers who make unauthorized disclosures of classified information as “snitches.”
Ellsberg said: “I have for a long time … believed that many journalists regard their sources of ‘national security’ information the way police regard their informants, their criminal informants—necessary, important, necessary to their career, necessary to the public—but snitches. Bad guys. Not to be respected, truthfully. Protected in their identity, like their informant, but lawbreakers.”
Snitches—or worse. Some media luminaries have gone beyond even the government’s vilification of whistleblowers. Last year, in a November 8 broadcast of 60 Minutes, CBS anchor Scott Pelley led off a segment by flatly referring to “convicted spy Chelsea Manning.”
The preposterous labeling of Manning as a “spy” by one of the highest-rated TV news programs should have sparked an outcry from major news outlets like The New York Times and Washington Post, which benefited greatly from the cache of state secrets that Manning brought to WikiLeaks. Without such whistleblowing and the unauthorized leaks of classified information, we would know little about the “war on terror” beyond what top officials told us.
Of course, leaks of classified information to reporters are a commonplace in Washington. The vast majority are officially sanctioned to help put the government in a favorable light. The late Senator Daniel Patrick Moynihan’s observation in a September 1998 letter to President Clinton is no less true today; Moynihan pointed out that leaking information to the press had become “a routine aspect of government life.” He added: “An evenhanded prosecution of leakers could imperil an entire administration.”
The winks and nods of selective prosecution mean that working journalists are apt to accept—and help perpetuate—an unjust system designed to flood the media zone with “authorized” leaks of classified information, that is those that spin a positive narrative. By tacitly accepting the government’s decision on which leakers to leave alone and which to prosecute, the media and traditional First Amendment advocates are buying into a narrow concept of press freedom—and a sophisticated form of government manipulation that distorts information flowing to the public.
When alleged sources of unauthorized leaks face imprisonment, journalists should make common cause with them—openly asserting that such leaks are essential for revealing fuller truths about what Washington doesn’t want the public to know. And when whistleblowers are locked up, the news media should provide coverage that counters the government’s efforts to stigmatize them as wrongdoers.
Chelsea Manning is serving a 35-year prison term. Jeffrey Sterling—who continues to deny he provided Risen with any classified information—is eight months into serving a 3.5-year prison term.
As one of the few journalists to attend all of the two-week Sterling trial, I watched with concern the successful prosecution that rested entirely on circumstantial evidence. Prosecutors made effective use of metadata, which showed that communication took place between Sterling and Risen—with the content almost entirely unknown. The prosecution also presented as damaging evidence the fact that the Times had published an article by Risen that quoted Sterling, who is African American, about a subject unrelated to the classified information—his lawsuit against the CIA for racial discrimination.
That a prosecution case could be successfully built around such evidence—merely showing that the defendant had communicated with a reporter—should have been alarming to journalists across the country. But news organizations and the big press-freedom groups weren’t paying attention to the ominous implications. And they scarcely noted that whether or not Sterling was guilty as indicted, he was a whistleblower. In 2003 he earned the ire of top officials in Langley by going through proper channels to express concerns to the Senate Intelligence Committee staff about the CIA’s “Operation Merlin” aimed at Iran.
The conceit that it’s possible to defend press freedom while turning a cold shoulder to whistleblowers is short-sighted—and, in the long run, for independent journalism and true First Amendment advocates, self-defeating.