The issue of just how far the Obama Administration is willing to go to pursue leakers gets murkier and murkier.Two weeks ago, we learned that a federal prosecutor trying to find the source of a story about the C.I.A. and a plot in Yemen to bomb an American airliner (it involved a double agent) secretly subpoenaed records from more than twenty phone lines used by more than a dozen editors and reporters at the Associated Press. Then came the revelation, in Sunday’s Washington Post, that, in an earlier case concerning a 2009 Fox News story about North Korea’s nuclear intentions, the same prosecutor seized e-mails from the reporter responsible for the story, Fox’s chief Washington correspondent, James Rosen, and described him in a court filing seeking access to the e-mails as “an aider, and abettor, and/or co-conspirator” in an alleged violation of the Espionage Act. Thanks to some digging by my colleague Ryan Lizza, we now know that in the Rosen case the Justice Department also seized the records of phone numbers associated with Fox News and others.
The suggestion that a reporter doing his job might be committing a crime, and one that carries up to ten years in jail, didn’t exactly go down well. On Tuesday, at his daily briefing, White House Press Secretary Jay Carney engaged in some damage control, saying he had discussed that very issue with the President: “And while… he cannot and I cannot comment on the specifics of any ongoing criminal matter, I can tell you that in our conversation yesterday he reiterated just how important he believes it is that reporters, that all of you and your colleagues, are able to do your jobs in a free and open way.” He went on, “If you’re asking me whether the President believes that journalists should be prosecuted for doing their jobs, the answer is no.”
That’s good to know, but it hardly clears up the questions surrounding the Administration’s attitude to the First Amendment in leaks cases, which are legion. Some of the questions concern the actions of the prosecutor who is handling both the A.P. case and the Rosen case, Ronald Machen, Jr., the United States Attorney for the District of Columbia, and some concern Machen’s boss, Attorney General Eric Holder. Ultimately, though, it is up to President Obama to provide the country with an explanation for a set of actions that the Washington Post’s Dana Milbank has called “as flagrant an assault on civil liberties as anything done by George W. Bush’s administration.”
Here, then, are some questions for Obama to answer:
1. Without getting into the details of individual cases, have you discussed with Attorney General Holder the Administration’s over-all attitude toward pursuing leakers? If so, what was the guidance you gave him?
The record shows that the Obama Administration has brought more prosecutions against leakers than any previous Administration. Officials, Holder included, have said this reflects circumstances, and a backlog of cases inherited from the Bush Administration, rather than an active policy. But, so far, we know little about any internal discussions on this issue.
2. Is it right for a federal prosecutor pursuing the source of a leak to subpoena the phone records not just of an individual reporter but of entire news organizations?
Obama has said there is an “important balance” to be struck between preventing the leaks of classified information and defending the freedom of the press, but he hasn’t given much indication of where this balance should be struck. In the A.P. case, we now know, the subpoena that Machen obtained was even broader than was initially reported. In addition to the phone lines at five A.P. offices, it included five reporters’ cell-phone lines, three home phone lines, and two fax lines. In the Rosen case, as Ryan Lizza reported, Machen seized the records of more than thirty phone lines, at least five of which appear to have been at Fox News.
3. Are you O.K. with a prosecutor subpoenaing phone records from the White House?
In the A.P. case, we don’t know whether Machen seized such records, but the F.B.I. did interview John Brennan, the C.I.A. director, who was President Obama’s senior adviser on counterterrorism when the alleged leak occurred in May of last year. In the Rosen case, the prosecutor sought the “subscriber records” for two White House numbers. That wouldn’t have included the full details of all calls made from these lines, but it would have helped him to determine which White House official was using them.
4. Is a reporter who receives classified information breaking the law?
It’s one thing to say journalists shouldn’t be prosecuted for doing their jobs. But in the affidavit seeking a search warrant for Rosen’s Gmail account, an F.B.I. agent said there was “probable cause” to believe he had violated Section 793 of the U.S. Criminal Code. In making this argument, the government claimed that it wasn’t confined by the Privacy Protection Act of 1980, which explicitly says the government cannot obtain a search warrant for a journalist’s work materials except in certain cases, one of which is when he or she has unlawfully received “information relating to the national defense, classified information, or restricted data.” So which is it, Mr. President? Is receiving classified information a criminal act, or is your Administration simply making that argument to get around the privacy laws?
5. Why didn’t the Justice Department inform the A.P. that it was seeking the phone records?
In a post last week, my colleague Lynn Oberlander, the New Yorker’s general counsel, pointed out that the failure to inform the A.P. about the subpoena—and thus the failure to give the news organization a chance to oppose its granting in the courts—appeared to run contrary to prior court rulings, and to the Department’s own rulings, which say it should notify a media company in advance of a subpoena unless such a notification would threaten the integrity of the investigation. In this case, it’s hard to see where such a threat resided. The suspicion lingers that a frustrated prosecutor, struggling to make progress in his investigation through normal channels, decided to launch a secret fishing expedition.
6. Do you still have confidence in the Attorney General’s handling of leak cases?
Under Justice Department guidelines, prosecutors seeking a subpoena have to obtain the prior approval of the Attorney General. Last week, Holder revealed he had recused himself from the A.P. case, citing the fact that the F.B.I. had interviewed him about it. He had a bit of difficulty recalling precisely when he recused himself and whom he told about that decision. Still, he defended his department’s handling of the investigation, saying the leak about the Yemen bomb plot “put the American people at risk” and was “one of the most serious leaks I’ve ever seen.” Now that the Rosen case has come to light, a case in which Holder presumably didn’t recuse himself, and in which the threat to national security appears to have been minimal, he has yet to say why he approved of the seizure of journalists’ e-mail accounts and phone records.
7. When it comes to national security, are you saying that freedom of the press doesn’t apply?
In response to the furor about the A.P. story, the White House said it supported a federal shield law to protect reporters and their confidential sources. But passage of such legislation might well not make much difference in cases such as the A.P. and Rosen ones. Back in 2009, as the Huffington Post reported last week, when Senator Chuck Schumer was trying to get a federal shield law through Congress, the Administration demanded a broad exemption for leaks involving national security. Nothing Obama has said in the past week or so suggests that he has changed his attitude on this issue.
Original Article
Source: newyorker.com
Author: John Cassidy
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