The administration's war on freedom of the press

Journalists must assert their rights to avoid playing victim to an overzealous government

Published May 28, 2013 10:40PM (EDT)

This article originally appeared on Firedoglake.

The Justice Department’s seizure of the Associated Press’ phone records, along with criminalizing Fox News reporter James Rosen to pursue a leak investigation into a former State Department contractor, has led to media organizations making some of the most clear defenses of freedom of the press to date. It has inspired a healthy amount of disdain for the Obama administration's relationship with the press and how the administration’s zealous pursuit of leaks has had a chilling effect on investigative journalism.

The host of CBS’ “Face the Nation,” Bob Schieffer, who has been in the news business for decades, condemned the administration this past Sunday:

People often ask me, of all the administrations you’ve covered which was the most secretive and manipulative? The Nixon administration retired the trophy, of course. Since then my answer is whichever administration is currently in power. Information management has become so sophisticated every administration learns from the previous one, each finds new ways to control the flow of information. It’s reached the point that if I want to interview anyone in the administration on camera, from the lowest-level worker to a White House official, I have to go through the White House press office.

If their chosen spokesman turns out to have no direct connection to the story of the moment, as was the case when UN Ambassador Susan Rice was sent out to explain the Benghazi episode, then that`s what we — and you the taxpayer– get. And it usually isn’t much.

Schieffer called on Obama to “rethink his entire communications policy top to bottom” (and also, with regard to an announced review of Justice Department practices involving investigations of reporters, have someone other than Attorney General Eric Holder lead the review).

On “This Week” on ABC, Martha Raddatz led a discussion of leak investigations. New York Times reporter Mark Mazzetti has made statements about the effects of leak investigations before, so what is, perhaps, more remarkable is the fact that Raddatz bluntly asked him what the “chilling effect” would be of the investigation into Rosen.

Mazzetti responded, “The big threat here is that, ultimately, it’s the reporters themselves that are seen as the ones who are breaking the law and that there could be prosecution.” He added, “Now, they haven’t gone down that road yet, but the chilling fact, of course, with all of these leak investigations, whether they’re successful or not or whether the cases blow up, is that people who might have been previously inclined to talk to reporters are less so now.”

To clarify what Mazzetti had said, Raddatz made the critical point that he was not “talking specifically about classified material. People may not want to talk to you about something like Abu Ghraib or …” Now, what happened at Abu Ghraib was classified or sensitive, but the point remains: This has an effect on the ability of journalists to obtain even low-level information for stories.

At one point, during Chris Wallace’s program on Fox News, Wallace defended the First Amendment and the “very important role that the media play," to Democratic Sen. Dick Durbin. “Honestly, are you comfortable with the idea that the president asked the attorney general to review the attorney general’s own actions?” he asked.

The Wall Street Journal editorial board published an editorial, “Obama’s Media Culpa,” excoriating the Obama administration for seeking to decide when reporting is legal.

…How much active reporting qualifies as illegal solicitation? Is it one phone call and lunch, or five calls, three emails and a fancy dinner?

The day that prosecutors and FBI agents get to define what is illegal reporting is the day the First Amendment dies. Putting so much discretion in the hands of government officials means that the reporters who are most likely to be accused of illegally soliciting leaks will be those who are most critical of Administration policies. There’s a word for this that liberals used to like: Nixonian…

The editorial was primarily in response to a statement from an anonymous administration official, which Lawfare’s Benjamin Wittes had posted. It blasted the anonymous official for doing what establishment newspapers often do in order to publish statements about government policies or activities: hiding behind anonymity to defend the Justice Department.

If Mr. Wittes’s correspondent has the courage of his unfortunate convictions, he’ll attach his name to them in public. We’ll provide ample space on these pages. But even made anonymously, the claims are another example of the ways in which this Administration is cavalier about the rule of law in the service of advancing its political agenda. [emphasis added]

That last sentence is rich because there is no way the News Corp-owned Wall Street Journal has never used anonymous statements to advance the paper’s own political agenda. But, obviously, with establishment media organizations, it is important for journalists to stand their ground and demand higher standards.

Days ago, the Washington Post had a critical editorial that declared the press should have the ability to ask questions:

What did the journalist do to become a potential criminal co-conspirator? According to the FBI agent, he “asked, solicited and encouraged” his source to disclose sensitive information. The reporter did this “by employing flattery” and playing to the “vanity and ego” of Mr. Kim. In other words, the journalist was doing what reporters do. Unfortunately, a judge signed off on this flimsy search warrant.


The Obama administration already has pursued more criminal leak investigations than all of its predecessors. There is a worrisome trend here, also recently evident in the government’s pursuit of Associated Press telephone records in a different leak investigation. Yes, the government must have secrets in order to function. But overclassification is so rampant that to criminalize the disclosure of all secret information would come close to paralyzing the flow of information. [emphasis added]

Government keeps too much information secret. Officials in government make statements in defense of policies or operations and expect anonymity. Numerous officials won’t talk unless they can maintain anonymity. Justice Department employees find it permissible to cast reporters as criminals in order to investigate leaks. And those in the executive branch could barely be concerned that the effect of investigations into leaks means it becomes nearly impossible to get someone in the lower levels of government to speak on the record about a policy or program.

All of the above is critical and the press appears to understand that this collectively undermines freedom of the press, but these are all issues that have existed in some way or another for at least the past 10 to 15 years, as I detailed over the weekend.

What has become clear is, even though these investigations are shrinking the pool of confidential news sources available for news gathering, there is a welcome byproduct: Journalists appear to be more willing to stick up for their interests. They even seem more willing to pursue stories that must be pursued because reporters have an interest in knowing just how extensive the Obama administration’s targeting of the press happens to be.

Press should not only stick up for their own. Media outlets, especially establishment media, should defend their nearly absolute right to publish leaks and even reflect on the extent of cooperation with government when deciding to publish national security stories. It has not made government more willing to foster a climate conducive to investigative journalism but rather convinced officials in the executive branch that they have even more of a right to control what is reported as news.

Finally, it is time to recognize that when government targets anyone and all organizations entitled to protections under the First Amendment, it creates threats to freedom of the press no matter who the individuals or organizations might be. The press collectively hung back over the past few years as the Obama administration waged a war on WikiLeaks.

Though the Post defended editor-in-chief Julian Assange’s right to publish in an editorial in December 2010, Nancy Youssef of McClatchy reported the following month, “The freedom of the press committee of the Overseas Press Club of America in New York City declared him 'not one of us.'” The Associated Press, which once filed legal briefs on Assange’s behalf, refuses to comment about him. And the National Press Club in Washington, the venue less than a year ago for an Assange news conference, has decided not to speak out about the possibility that he’ll be charged with a crime.”

While continuing to cite material released by WikiLeaks to supplement news stories, they have not come to WikiLeaks’ defense like they did in 2008 when Swiss bank Julius Baer filed a lawsuit against the media organization for publishing “hundreds of private documents on a land deal that suggested money laundering and tax evasion.” But that is what must be done.

Information involving the nature of ongoing leak investigations, the number of times the administration has investigated journalists, details around every decision to subpoena reporters’ communications or records, any grand juries including the secret grand jury empaneled to investigate WikiLeaks, how the government continues to classify an enormous amount of information, secret policies or positions of the administration with regards to the press, etc., should all be pursued by the press in America.

From the AP to James Rosen to WikiLeaks, each is a victim of abuse of government power that can only be checked and controlled by a press willing to regularly challenge power and assert its rights without compromise.

By Kevin Gosztola

Kevin Gosztola is a civil liberties blogger for Firedoglake

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