This commentary also appears at the Huffington Post.
Kudos to David Carr of the New York Times for shining a light on an issue that doesn’t attract nearly the attention that it should: the Obama administration’s abuse of the Espionage Act, which in turn has led to a virtual war on journalism and free expression.
As Carr notes, the Espionage Act, approved in 1917 during the hysteria of World War I, was used three times before President Obama took office in 2009 — and six times during his presidency.
We live in a dangerous era, and there have been prosecutions with which it may be hard to disagree. Carr cites the case of Bradley Manning, who’s been charged with stealing national-security documents that are at the heart of the WikiLeaks disclosures.
But Carr also writes that leak prosecutions often seem to be aimed more at punishing people for embarrassing the government than for genuinely damaging national security. In a particularly ironic case, a former CIA officer named John Kiriakou has been charged with leaking the names of agents involved in interrogating terrorism suspects. Carr points out that “none of the individuals who engaged in or authorized the waterboarding of terror suspects have been prosecuted.”
(More about the Kiriakou case from the Reporters Committee for Freedom of the Press. Kiriakou has denied the charges.)
Kudos, too, to Jake Tapper of ABC News, whose confrontation with White House press secretary Jay Carney is the hook Carr uses to delve into the issue. A fuller account of Tapper and Carney’s exchange can be found here. Here’s Tapper responding to Carney’s praise for the journalist Marie Colvin, killed in Syria last week:
How does that square with the fact that this administration has been so aggressively trying to stop aggressive journalism in the United States by using the Espionage Act to take whistleblowers to court? You’re — currently I think that you’ve invoked it the sixth time, and before the Obama administration, it had only been used three times in history. You’re — this is the sixth time you’re suing a CIA officer for allegedly providing information in 2009 about CIA torture. Certainly that’s something that’s in the public interest of the United States. The administration is taking this person to court. There just seems to be disconnect here. You want aggressive journalism abroad; you just don’t want it in the United States.
I suspect Obama and Attorney General Eric Holder have gotten a pass from many liberals because they believe a Republican president would be even worse on such matters. The fact is, though, that no president has been more aggressive than Obama in prosecuting suspected leakers.
And given the way the media work, it’s no surprise that they’ve said little, since the heart of what they do is respond to accusations. The storyline being promoted by Mitt Romney, Rick Santorum and Newt Gingrich is that Obama is weak on national security, so they’re certainly not going to criticize the president for being too tough on leakers. Thus, no story.
When the government wants to take suspected leakers to court, it inevitably demands that journalists reveal their confidential sources. There is no constitutionally recognized right for journalists to protect their sources, and no federal shield law, which means that such cases have a considerable chilling effect on tough reporting.
In 2006, “Frontline” interviewed Mark Corallo, who was director of public affairs for George W. Bush’s first attorney general, John Ashcroft. In this transcript, you’ll see that Corallo, with the support of Ashcroft — not generally thought of as a friend of the First Amendment — approved only one subpoena for a journalist out of “dozens” that were requested. Corallo continued:
I can’t tell you about that case. It was a national-security case. I believed, after long reflection, that it did put innocent people’s lives in danger, our allies, people in other countries who would be subject to terrorist attacks. The case was so egregious; it was such a horrible instance of unethical behavior by a journalist to boot.
I hope Tapper’s tough questioning and Carr’s column are the beginning of a genuine attempt to hold the Obama White House to account for its repressive policies.