Screenshot from C-SPAN of Sen. John McCain introducing resolution for Special Counsel to investigate leaks

Attorney General Eric Holder appeared before the Senate Judiciary Committee on Tuesday, June 12, for a Justice Department oversight hearing. With politicians in a frenzy over leaking by the Obama administration, Holder was forced multiple times to defend and explain his plan to investigate and get to the bottom of the leaks. Republican senators took issue with Holder’s plan to have two US attorneys linked to the Justice Department investigate the leak when leaks likely came from the Justice Department.

A few senators made it clear in their questions that they would have no problem if investigative journalists became caught up in the kind of wide-range investigation, which they feel is warranted given the kind of information on kill lists, cyber warfare, and covert operations that is now in the public domain. Sen. Jon Kyl wanted to know if the investigation would require journalists “to reveal their sources if that information can’t be obtained otherwise.” Sen. Jeff Sessions read from the New York Times article on the “kill list” and said, “the President’s top aides, former top aides, some of your senior officials at the department are people that were talking to the New York Times and need to be interviewed in an aggressive independent way.” And, on CNN on June 6, Sen. Dianne Feinstein said journalist David Sanger, author of Confront and Conceal, where many of these so-called leaks can be found said:

He assured me that what he was publishing, he had worked out with various agencies and he didn’t believe that anything was revealed that wasn’t known already…Well, I read ‘The New York Times’ article and my heart dropped, because he wove a tapestry which has an impact that’s beyond any single one thing. And he’s very good at what he does. And he spent a year figuring it all out. And he’s just one. And this is a problem.

Feinstein is clearly stating that Sanger’s ability to conduct investigative journalism is problematic. This should be troubling to the press in the United States, especially since the Obama administration’s war on whistleblowers has already made it difficult for journalists or reporters to get sources in government to talk openly about issues or policies. However, a search of the twenty-five most circulated newspapers in the US indicates only seven of the newspapers’ editorial boards have published editorials on the investigation. Four of these newspaper editorials warn of how this could negatively undercut journalism, while three of the newspaper editorials brazenly cheer politicians who are looking for someone in the Obama administration they can hold accountable and prosecute.

The Los Angeles Times editorial board, on June 8, wrote, “Lawmakers understandably are concerned about secret government information being published by the media, but the use of that information by journalists serves the public interest.” They urged Congress “not to criminalize the reporting of information that may have come into the possession of the media because a government official was indiscreet.” And added media should be able to share information from government officials without fear of prosecution.

The Dallas Morning News editorial board wrote on June 12 that Obama’s “categorical leaks denial fails the scrutiny test.” Nonetheless, the newspaper showed concern and stated, “If reporters must be subpoenaed, prosecutors should recognize the very high bar and should have exhausted all other avenues. They also should recall that the government hasn’t always been honest about that. In the Valerie Plame case, special counsel Patrick Fitzgerald jailed a New York Times reporter, Judith Miller — to no purpose, as the evidence later revealed.”

The San Francisco Chronicle editorial board was even more terse in expressing their concerns. The paper declared on June 12, “Obama punishes leakers only when embarrassed.” Instead of an investigation into the leaks, they called for an examination of Obama’s manipulation of secrecy laws. And they focused on a “more troubling issue”—the reality that the “Obama administration is the most forceful, vigilant and merciless in cracking down on whistle-blowers and leakers in nearly a century. The liberal law professor in the White House is no softie when it comes to punishing voices who undercut his pronouncements and policies.”

Finally, on June 14, the Washington Post editorial board published an exceptional editorial on the criminalization of leaks. They, too, lamented the fact that Judith Miller was jailed for 85 days in 2003 as a part of Fitzgerald’s investigation into the Plame leak. They also wrote:

Whether undertaken by Justice’s prosecutors or an independent counsel, the current investigation should, and almost certainly will, lead to a similar dead end — which is one reason we believe it should not have been begun at all. As in previous cases, including the six mostly unsuccessful leak prosecutions so far launched by the Obama administration, it’s doubtful that any law was broken. Disclosing classified information is not by itself a crime, and courts have found that under the flawed 1917 espionage statute used in such cases, prosecutors must show that a leak was intended to harm U.S. security — an appropriately high bar. [emphasis added]

The significance of the statement that it is doubtful any law was broken by the six “leakers” pursued by the Obama administration cannot be understated. This statement does not exclude the case of Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks. It also makes clear that the government has to prove an intent to harm US security to prosecute individuals for leaks. Neither former NSA employee Thomas Drake, former CIA officer Jeffrey Sterling, former FBI linguist Shamai Leibowitz, former CIA agent John Kiriakou, or Pfc. Bradley Manning had any intent to do damage to the US by releasing sensitive or classified information. Yet they each face or have faced prosecution from the Obama administration under the Espionage Act.

These are papers that take the possible outcome of a leaks investigation seriously. They value the information these reporters were able to obtain from government officials. They understand how the leaks investigation feeds into the chilling climate created by the Obama administration’s war on whistleblowers. Sadly, there are three newspapers whose editors overlook the value of the leaks and ignore what might happen to journalists who could be subjected to a bipartisan witch-hunt.

The New York Post editorial board published a typically glib editorial that called the leaks “slow-motion treason.” Newsday’s editors published an editorial urging Congress to “get to the bottom of the security leaks.” The editors wrote with great authoritarian flare that would please politicians like Representative Peter “WikiLeaks is Terrorism” King:

Our enemies must be kept in the dark. Our allies have to be able to trust the United States to keep key secrets. And intelligence agencies have to be able to protect sources and methods. In this case the life of an undercover agent who foiled an al-Qaida plot involving an updated underwear bomb was jeopardized.

The New York Daily News editorial board, on June 8, noted the hypocrisy of the Obama administration. Like Sen. John McCain, they determined since the administration has prosecuted “leakers” or whistleblowers the administration can most certainly go after the people who released information to reporters for recently published books or news stories.

That these three newspapers would react to the leaks hysteria in this fashion is not surprising. These papers are actually tabloids that play on the emotions of masses. The Daily News, Post and Newsday are not in the business of investigative journalism. They are not interested in the truth. They are interested in sensational headlines that provide titillation for gullible and ignorant Americans, who lazily consume simplistic stories that any authoritarian leader would be pleased to see his country’s people reading.

Interestingly, even though New York Times journalist David Sanger is a likely target in this investigation, the Times editorial board has not published an official editorial. And, it seems Sanger has not used the Times to defend his reporting on cyberwarfare against Iran. He had to go on CNN to do that.

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This leaks investigation may seem like a partisan sideshow because of the bickering about who should lead the investigation. One may wonder if what happened could even be called a “leak.” When compared to the WikiLeaks disclosures, the information in this case is far different. There are no actual documents. There was no clear security breach (except for maybe in the case of the CIA agents that spoke to the press about an underwear bomb plot in a Yemen sting operation before it concluded). The information making headlines, which is likely the product of cozy relationships with the powerful, came from reporting.

Senators and representatives are already talking about what legislation they intend to pass to prevent future leaks. This could very well be the pretext for passing something that resembles an Official Secrets Act. Such legislation would place further restrictions on the free speech rights of government employees. It might also target reporter’s privilege and make it easier for government to force journalists to reveal confidential sources.

The Justice Department under Obama has already tried to force New York Times reporter James Risen to reveal confidential sources that he spoke to for his book, State of War, who allegedly revealed details on the CIA’s botched efforts to sabotage Iranian nuclear research. They tried to get him to testify in the trial of Jeffrey Sterling, a former member of the CIA who is charged with leaking classified information to Risen. This violation of reporter’s privilege led ABC, CBS, CNN, Fox News, National Public Radio and NBC, and print media including The Associated Press, Bloomberg, Hearst, McClatchy, Newsweek, The New York Daily News, Reuters, Scripps-Howard, Time, the Tribune Company, The Wall Street Journal and The Washington Post to urge a district court judge to not force him to testify. When the judge ruled Risen was protected by reporter’s privilege and his testimony was not “crucial” to the prosecution of Sterling, the Justice Department did not back down.

No reporter or media organization wants to be embroiled in a leaks investigation. Media organizations, especially in a fragile news economy, would rather have their journalists abandon national security reporting altogether to avoid being targeted by the government. Or, they would rather have reporters obtain consent ahead of publishing so they have cover if the government tries to prosecute them for revealing certain information. Clearly this should not be considered freedom of the press.

Jesselyn Radack, a former Justice Department whistleblower who is the director of the National Security and Human Rights Division of the Government Accountability Project, appeared on “Democracy Now!” this morning to discuss all this leaks hysteria. She said she was concerned that we could end up with a “really bad anti-leaks law that ends up chilling discussion and ends up being used primarily against whistleblowers. I am afraid that could be the unintended consequence of all these investigations, which in the end I am not hopeful will lead to any kind of accountability for anybody.”

She highlighted how President Bill Clinton had vetoed anti-leaks legislation and how the real issue here is really that classification of information has increased under Obama making it more likely that government employees will release information that is classified when talking about government policies:

The real issue is a failure to distinguish between classified information that has not been properly classified that is being used to hide illegality, mistakes or embarrassment by the administration versus leaks that are really whistleblower disclosures of fraud, waste and abuse and illegality, which are protected by the Whistleblower Protection Act and so far only that latter category has been subject prosecution. But, again, while there is a hunger for just desserts in seeing the Obama administration being called out on leaking like a sieve for its own gain, I’m worried about the long-term unintended consequences that Congress could end up passing a really bad anti-leak measure that I think in this administration that Obama would sign.

There are a few media organizations in the United States that, like Radack, understand where this all could lead. But, honestly, it is too bad that more media organizations aren’t concerned. Despite the release of over 500,000 government documents from WikiLeaks that the media still uses to provide context for news stories, despite the Obama administration’s record number of prosecutions against “leakers” or whistleblowers, and despite the Obama administration’s clear use of secrecy powers to manipulate public access to information, and despite this frenzy motivated by the fact that Republicans think they have finally found a national security issue they can use against Obama; far too many news outlets are silent on what an investigation could mean for journalism and the ability of reporters to be able to talk to sources in government.

Here is Jesselyn Radack on “Democracy Now!”: