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Obama v. the Press: A History Worse Than Nixon?

The Constitution professor doesn’t like the First Amendment

As a candidate he had called warrantless surveillance “unconstitutional and illegal”.

In his first inaugural address he said, “My administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration”.

On his first day in the Oval Office he commented, “For a long time now, there's been too much secrecy in this city", as he signed executive orders to reverse some of the Bush Administration policies.

And just days ago President Obama said, “…a free press is also essential for our democracy. I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.”

You would never know from these statements that in the intervening years he and his Justice Department have conducted “unprecedented” surveillance of journalists and prosecuted more federal employees under the 1917 Espionage Act than all prior administrations combined. Previously used only three times by all presidents since its enactment in 1917, Obama has wielded it six times.

In addition to the Justice Department secretly snatched the call records of 20 phone lines belonging to the Associated Press (AP) and its reporters, now comes the revelation that the government secretly pilfered the phone logs and e-mails of James Rosen, the chief Washington correspondent of Fox News.

The counsel who represented the New York Times in no less than the Pentagon Papers case says that if he wants to make it a crime for a reporter to talk to a leaker, "It is a further example of how President Obama will surely pass President Richard Nixon as the worst president ever on issues of national security and press freedom".

The last section of our related article, “Scandals Put the U.S. On Hold”, recounts the snooping on AP, but the Rosen story broke after that was written. Rosen had reported in 2009 that North Korea would likely launch a missile as a kind of retaliation if the United Nation’s Security Council condemned its nuclear testing. That probably sounds like everyday behavior that anyone could have forecast by the Hermit Kingdom, not rising to the level of a leak, but it may have told Kim Il-sung that we had a source inside his regime.

Rosen’s suspected source in the State Department had already been identified and indicted, which should have been the end of it, but the Washington Post uncovered that the FBI had gone on to pursue Rosen for reporting his story, petitioning in court for access to Rosen’s e-mail with a 36-page affidavit that showed just how widely the FBI had spied on Rosen’s life and movements.

since when is reporting a crime?

The affidavit called Rosen “an aider and abettor and/or co-conspirator” in the leak, and that is what has the press and general media in an uproar. Rosen "was named a criminal co-conspirator for simply doing his job as a reporter", in the words of Michael Clemente, an executive VP at Fox News. The affidavit says that the government views reporting a leak as a crime, whereas it is precisely the essential role of a free press to pry open the secrets of government, made all the more secret by the practice of stamping everything more than the lunch menus in their cafeterias as “classified”. Instead of seeking out only the leaking source, the government is now going after reporters for doing their job. Already, sources in government are avoiding reporters, with several commenting in this roundup on the “chilling” effect of government targeting. Others complain of being taken from their jobs by the FBI for questioning.

Other government investigations are under way, such as the Times David Sanger’s exposé of the Stuxnet virus that caused Iran’s centrifuges to fail, and other news organizations wonder whether the Justice Department and FBI have secretly commandeered their phone records e-mails, credit cards charges, travel tickets as well.

David Brooks, a conservative columnist at the New York Times says “if anyone in the media reports a story that is based on a leak, it's public". That is, it has been let out into the open and a journalist has the right to make it known. No American journalist has ever been prosecuted for reporting classified information leaked by a government employee. But that seems to be the thrust of the government now. Brooks calls himself “not a particularly open government kind of guy”, but views the AP and Rosen actions as "almost historically unprecedented and unconscionable". They are the much bigger scandal, the one that threatens the Constitution.

Yet in this op-ed piece, telling us that “Prosecutors were right to obtain phone records of A.P. journalists”, three former Justice officials want to assure us only after a “methodical and measured investigation” spanning “eight months of intensive effort” that pursued “all reasonable alternative investigative steps” did the department secretly filch the AP phone records rather than follow the long-established protocol of openly requesting such records. That gives the news organization the option of challenging the request in court, should it choose not to cooperate, which Justice apparently viewed as a nuisance. As did the Justice Department’s letter to company AP CEO Gary Pruit, the op-ed authors say the Justice Department had first grilled 550 persons about the Yemen leak. If that many people were thought to be enough involved to know something, whose fault is it that there was a leak? The government is a sieve.

A bit of irony, one of the op-ed authors was Jamie Gorelick, a proponent of government secrecy who was revealed in the 9/11 Commission hearings as the Justice official who erected “the Wall” that forbade the exchange of intelligence information between CIA and FBI that prevented the agencies from “connecting the dots” of information that hinted of the oncoming World Trade and Pentagon attacks.


These latest incursions on the freedom of speech and the press are nothing new in the Obama administration, and we’ve tabulated their actions before.

No one knows this better than John Kiriakou, the former CIA agent who reported to federal prison at the end of February. Kiriakou, in the midst of a bloody shootout, stormed a house in Pakistan, captured a badly wounded man, and sent a cellphone photo of his ear that identified the captive as Abu Zubaydah, a prize catch in the early moments of the new war against al Qaeda in 2002. Today, that risk of his life for his country is forgotten by the Obama government that accused Kiriakou of revealing to a journalist the classified names of two CIA colleagues, whom he thought had left the agency, who had been involved in waterboarding interrogations. The Obama Justice Department that has never prosecuted anyone for waterboarding prisoners sent Kiriakou to prison for 30 months. "In truth, this is my punishment for blowing the whistle on the CIA’s illegal torture program and for telling the public that torture was official US government policy", he said in a letter just sent from prison.

Worst was the prosecution of whistle-blower Thomas Drake, formerly of the National Security Agency, for telling a reporter from the Baltimore Sun of the government’s intention to pay hundreds of millions of dollars to an outside vendor to develop data monitoring software instead of using an internal product that cost far less and was less invasive of privacy. Somehow, even this was classified. For this attempt to save taxpayers’ money, Drake was looking at 35 years in prison. The case was so weak that the government settled for a face-saving misdemeanor charge but Drake had been fired, lost his pension and was ruined financially by legal costs.

The Obama Administration has tried to force The New York Times’ James Risen to confirm that his source for a 2006 book on the CIA’s attempt to sabotage Iran’s nuclear program was a former CIA officer on trial for providing Risen that information. Risen, along with Eric Lichtblau of the Times won the Pulitzer for discovering the Bush Administration’s spying on international communication traffic. Much like attorney-client privilege, the press have traditionally not been forced to reveal their sources of information. Most states have laws that shield the press and a Virginia court ruled against the government’s attempt to force Risen to testify. But there is no federal shield law and a government unconcerned for the First Amendment is appealing. In his speech last week at the National Defense University, Obama urged that the Senate dust off a federal shield law that was never voted on, except that it appears to be no more than window-dressing. The proposed law has an exception, inserted by the White House, that allows the government to investigate and prosecute reporters if "national security" is being endangered, says The Nation.

President Obama has personally seen to it that a Yemeni journalist remains behind bars for the crime of exposing the Obama Administration’s cover-up of a December 2009 bombing raid in Yemen that went wrong. Getting wind that reporter Abdulelah Haider Shaye was about to be pardoned, an early release from a five year prison sentence, Obama phoned then-Yemen president Saleh to ask that Shaye be kept behind bars.

His crime was discovering that the bombing was conducted not by Yemen but by the U.S. and had not killed al Qaeda militants but 14 women and 21 children. At the site, Shaye had discovered the remnants of cluster bombs and cruise missiles, ordnance never in Yemen’s arsenal. The President clearly does not want the truth to come out, and keeping a reporter in jail in a country most Americans cannot find on a map is a good place to lock down the truth. But a Wikileak intercept caught President Saleh saying to Gen. David Petraeus that his government agreed to say, “The bombs are ours, not yours”. The full story is reported by Jeremy Scahill at The Nation.

At great risk, Shaye had in the past gone into al Qaeda controlled areas of Yemen and interviewed their leaders, even U.S. citizen Anwar al Awlaki before he was judged a terrorist and assassinated by the U.S. Access to al Qaeda is an invaluable reportorial resource for gaining insights into the terrorists, but the Obama Administration instead now uses such contacts as a justification for imprisonment. Our ambassador to Yemen dutifully fabricated, “Shaye is in jail because he was facilitating Al Qaeda and its planning for attacks on Americans”. All interviewed by Scahill who know Shaye say this is a lie, and the Committee to Protect Journalists, the International Federation of Journalists, Reporters Without Borders and other international media organizations have called for Shaye’s release.

backing off?

A press free to develop sources to find the truth is vital to preserving a democracy and preventing the encroaching secret government that Obama finds to his liking. News organizations ranging from the New York Times to Fox News, and of course the Associated Press, declined an invitation from Eric Holder to the Justice Department because it would be “off the record”. It was viewed as an attempt by Holder to get back in good graces with the media, but in an arrangement where attendees would be constrained by journalistic ethics from reporting on his answers to some awkward questions. The Wall Street Journal, Politico and The Washington Post accepted.

Possibly someone thought to remind the Attorney General what Justice Hugo Black wrote when the Supreme Court ruled against the government’s attempt to block publication of the Vietnam war history that came to be called the Pentagon Papers: “The government’s power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people.”

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