Tag Archives: Barack Obama

What happened at The Guardian could happen here

Chief_Justice_Charles_Evans_Hughes

Charles Evans Hughes

This commentary was first published at The Huffington Post.

As you have no doubt already heard, Alan Rusbridger, editor of The Guardian, wrote on Monday that British security agents recently visited the newspaper’s headquarters and insisted that hard drives containing leaked documents from Edward Snowden be smashed and destroyed in their presence. The incident, Rusbridger said, took place after a “very senior government official” demanded that the materials either be returned or disposed of.

Rusbridger’s report followed the nearly nine-hour detention of Glenn Greenwald’s partner, David Miranda, at London’s Heathrow Airport. Greenwald has written the bulk of The Guardian’s articles about the Snowden documents, and Miranda had been visiting filmmaker Laura Poitras, who has worked extensively with Snowden and Greenwald, in Berlin.

We are already being told that such thuggery couldn’t happen in the United States because of our constitutional protections for freedom of the press. For instance, Ryan Chittum of the Columbia Journalism Review writes, “Prior restraint is the nuclear option in government relations with the press and unfortunately, the British don’t have a First Amendment.”

But in fact, there is nothing to stop the U.S. government from censoring the media with regard to revelations such as those contained in the Snowden files — nothing, that is, except longstanding tradition. And respect for that tradition is melting away, as I argued recently in this space.

The case for censorship, ironically, was made in a U.S. Supreme Court decision that severely limited the circumstances under which the government could censor. The decision, Near v. Minnesota (1931), was a great victory for the press, as the ruling held that Jay Near could not be prohibited from resuming publication of his scandal sheet, which had been shut down by state authorities (of course, he could be sued for libel after the fact).

What’s relevant here is how Chief Justice Charles Evans Hughes described the limited circumstances under which the government could engage in prior restraint:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.

The text I’ve bolded means that the government may, in fact, engage in censorship if by so doing it would prevent a breach of national security so grave that it could be likened to the examples cited by Hughes. That’s what the Nixon administration relied on in seeking to stop The New York Times and The Washington Post from publishing the Pentagon Papers in 1971.

The Supreme Court, in allowing publication of the Pentagon Papers to resume (New York Times Co. v. United States), wrestled extensively with Near v. Minnesota, and ultimately decided that revealing the government’s secret history of the Vietnam War did not amount to the sort of immediate, serious breach of national security that Hughes envisioned.

But who knows what the court would say if the Obama administration took similar action against The Washington Post, which has published several important reports based on the Snowden documents — including last week’s Barton Gellman bombshell that the National Security Agency had violated privacy protections thousands of times?

Unlike the Pentagon Papers, the Snowden documents pertain to ongoing operations, which cuts in favor of censorship. Cutting against it, of course, is that there’s a strong public-interest case to be made in favor of publication, given the long-overdue national debate that Snowden’s revelations have ignited.

The bottom line, though, is that there is no constitutional ban that would prevent the White House from seeking to stop publication of the Snowden documents — even if U.S. officials are unlike to engage in the sort of theatrics that reportedly took place in The Guardian’s basement.

(Disclosure: I wrote a weekly online column for The Guardian from 2007 to 2011.)

Edward Snowden and the peril facing journalism

Edward Snowden

Edward Snowden

This commentary was published earlier at The Huffington Post.

The editors of The New York Times appear to have forgotten an important principle: the First Amendment is for all of us, and does not grant any special privileges to the institutional press. Thus if Edward Snowden is prosecuted for leaking classified documents about the National Security Agency’s secret surveillance programs, the news organizations that published those documents could face criminal charges as well.

The possibility that journalists could be in legal jeopardy for doing their jobs seems not to have occurred to whoever wrote an editorial in today’s Times, which argues that Snowden should be prepared to pay the price for civil disobedience by way of his leaks to The Guardian and The Washington Post.

Though the editorial dismisses the absurd notion that Snowden has committed treason, it concludes with this observation, which comes across as semi-sympathetic but contains toxic implications: “Mr. Snowden may well be going to jail for exposing practices that should never have been secret in the first place.”

In fact, if Snowden, as seems likely, is charged under the Espionage Act of 1917, there is nothing to stop the government from going after The Washington Post as well — or The Guardian, if someone would like to seek extradition of Glenn Greenwald, who broke the story, and his editor, Alan Rusbridger.

American journalists in these situations operate on the premise that they are free to publish information even if the source or sources who gave it to them violated the law in obtaining it. That’s largely true — First Amendment protections against censorship are extraordinarily high. The corollary, though, is that there may be consequences to be paid post-publication.

The best-known example is the Pentagon Papers, a case that should be near and dear to the hearts of Times editors. In a 6-3 decision, the U.S. Supreme Court ruled that the Times and the Post could not be prevented from publishing the government’s secret history of the Vietnam War.

But as civil-liberties lawyer Harvey Silverglate pointed out in a 2006 article for The Boston Phoenix, five of the nine justices essentially invited the government to file charges against the Times and the Post after publication — and the Nixon administration was preparing to do just that before it got caught up in the burgeoning Watergate scandal.

Silverglate was concerned that the Times faced possible charges under the Espionage Act for revealing the existence of the Bush administration’s warrantless wiretapping program. Even though the program illegally circumvented the Foreign Intelligence Surveillance Court, then-president George W. Bush called the Times’ reporting “a shameful act” — and Gabriel Schoenfeld, writing in Commentary, was just one on the neocon right who argued that the Times should be prosecuted.

More recently, the Times published many of the WikiLeaks documents exposed by Bradley Manning, who is now on trial and who may face a life sentence. And in 2010 John Cook posted a short piece in Gawker making the commonsense observation that the Times potential liability was precisely the same as that of WikiLeaks founder Julian Assange, who had been targeted by Attorney General Eric Holder. Cook wrote:

So if it was a crime when Assange obtained the database, why wasn’t it a crime when the Times did? The Espionage Act makes no distinctions when it comes to sources of defense information: It’s a crime to “obtain [it] from any person, or from any source whatever.” Assange got it from Manning, the Times got it from the Guardian; both transactions are equally criminal under the act.

More than a year ago, I argued that President Barack Obama was engaged in a “war on journalism” stemming from his administration’s obsession with rooting out leakers. Recently we learned that the Justice Department had spied on the Associated Press and on Fox News reporter James Rosen, and had even gotten a judge to sign a search warrant identifying Rosen as a criminal co-conspirator. Now U.S. Rep. Peter King, R-N.Y., is calling for journalists to be prosecuted for publishing the NSA documents leaked by Snowden.

This is a moment of great peril for journalism. With 56 percent of Americans saying they don’t mind if the government monitors their phone records, public opinion is hardly on the side of whistleblowers and the news organizations that work with them.

Whether we approve of everything Edward Snowden did or not, The New York Times and others in our craft ought to show more solidarity. If he is in trouble, so are all of us.

Debunking the “partisan shifts” on surveillance

The most important (and chilling) finding from the latest Pew Research Center/Washington Post survey is that 56 percent of Americans say they support the National Security Agency’s surveillance of phone records, email and other electronic traffic.

A few, though, have pointed to a chart showing supposed hypocrisy on the part of Democrats. In January 2006, self-identified Democrats opposed the NSA’s surveillance programs by a margin of two to one. Today they support those programs by an almost identical margin.

The chart is helpfully labeled “Partisan Shifts in Views of NSA Surveillance Programs.” But what really matters is a parenthetical: “See previous table for differences in question wording.”

So I did, and you can, too. The 2006 survey, by ABC News and The Washington Post, was based on the following proposition: “NSA has been investigating people suspected of terrorist involvement by secretly listening in on phone calls & reading emails without court approval…”

This time around, Pew and the Post put it this way: “NSA has been getting secret court orders to track calls of millions of Americans to investigate terrorism…”

I added the emphasis in both instances to highlight the differences. Under George W. Bush, without court approval; under Barack Obama, with court approval. And: “listening in on phone calls” in 2006 versus “track[ing] calls” in 2013. A considerable difference, regardless of what you think of the NSA’s activities (and, for the record, I’m glad they’ve been exposed).

This one is on us

As we all express our outrage over the Verizon snooping, as we should, let’s remember: President Obama did this legally, following a provision of the Patriot Act that, as a senator, he voted for, and that Hillary Clinton, among others, opposed.

For years, politicians who voted against such things were demagogued as soft on terror. When The New York Times exposed George W. Bush’s illegal secret wiretapping, Bush called the story “shameful,” and some (including then-attorney general John Ashcroft) called for the Times to be prosecuted under the Espionage Act.

So, yes, we should express our outrage. At ourselves.

Targeting of the AP is neither new nor illegal. Just outrageous.

AP logoA lot of outrage has been generated over the Department of Justice’s secret subpoena of the Associated Press’ phone records, and I share that outrage.

But what the DOJ did was not new and not illegal — it was, rather, the latest example of overreach by an administration that has demonstrated its contempt for the role of a free press in a democratic society. Which, of course, makes the Obama White House no different from (though more zealous than) most of its predecessors.

Erik Wemple of The Washington Post explains by dredging up a similar, if less sweeping, case from years past, and in the process does a good job of showing why it matters. If the press can’t promise sources anonymity, it can’t perform its role as a check on government.

An editorial in The New York Times endorses a long-stalled federal shield law that would provide journalists with greater protections than they now have with regard to protecting confidential sources — a move that President Obama is now pushing for.

But what does Obama care? As the Times points out, such a law probably would have made no difference in the AP scandal, since all the DOJ would have had to do was invoke one of the exceptions built into the bill.

The next time you hear someone say that the DOJ’s actions violated the First Amendment, run the other way. A century’s worth of rulings by the U.S. Supreme Court holds that though the media have an enormous amount of protection under the First Amendment to publish or broadcast, they have no more rights than ordinary citizens when it comes to newsgathering.

Here is the Supreme Court in Branzburg v. Hayes (1972) explaining why it would be impossible to created a protected class of journalists who would enjoy an absolute right to protect their sources:

Liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.

The reason that Eric Holder and company could secretly subpoena the AP’s phone records is because they can do it to anyone. It’s a matter not of the Constitution but of judgment — something the Obama administration has demonstrated very little of on this issue.

AP probe should be a wake-up call for journalists

Trevor TimmBy Trevor Timm

As part of a new leak investigation, the Justice Department has secretly obtained the call records for 20 phone lines owned by the Associated Press, which could put sources for as many as 100 reporters at risk. The AP called the move a “massive and unprecedented intrusion,” saying they “regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.”

We agree. It’s time to stop looking at all of these leak investigations and prosecutions as ancillary to press freedom; they are a direct attack on it. This should be an important wake-up call for journalists.

While this incident has brought the Justice Department’s crackdown on leakers to a new extreme, it’s important to remember, this storm has been brewing for a while now. In five years, the Obama administration has prosecuted more leakers under the Espionage Act than all other administrations combined, and virtually all these prosecutions have engulfed journalists in one way or another.

As part of this current investigation, we’ve known the FBI has been data-mining government officials’ phone and email records for months, looking for links to journalists on a systematic scale. The Washington Post reported in January, the FBI is using new, “sophisticated software to identify names, key words and phrases embedded in emails and other communications, including text messages, which could lead them to suspects.”

According to the Post, “The FBI also looks at officials’ phone records — who called whom, when, for how long.” Anytime the FBI found a government official has contact with the unknown number of “particular” journalists, FBI agents were “confronting” officials with this information.

A similar leak investigation to the one that has engulfed the AP is aimed at New York Times sources for its investigation into secret U.S. cyberattacks. The government refused to comment if the Justice Department has gone to similar extremes with The New York Times’ phone lines.

Regardless, as The New York Times reported on its front page in August of last year, these leak investigations are “casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings.” The Huffington Post recently interviewed several of the nation’s most prominent national security journalists, all of whom confirmed it’s a perilous time for journalists who are reporting on what the government considers secret.

The Justice Department does not deny this. When asked about the Obama administration’s crackdown on leakers last June, a senior Justice Department (DOJ) official told longtime national security reporter Shane Harris that the DOJ is “out for scalps.” Harris’ DOJ source also “made it clear that reporters who talked to sources about classified information were putting themselves at risk of prosecution.”

And it may be about to get worse.

In another leak case, New York Times reporter James Risen has been fighting a subpoena from Obama’s Justice Department for years. The Obama DOJ is after his sources for a chapter in his book “State of War.” (You can read the incredible chapter at issue, about a spectacularly bungled CIA mission that allegedly handed nuclear bomb blueprints to Iran, here.)

The Obama administration inherited the case from the Bush administration, and despite the fact that the district court judge sided with Risen during both the grand jury and trial, DOJ has continued to appeal the case. Last May, the DOJ argued before the Fourth Circuit that reporters’ privilege does not exist at all for national security reporters. Disturbingly, the Justice Department said that Risen protecting his sources was “analogous” to refusing to testify about receiving drugs from a confidential source.

The Fourth Circuit Appeals Court decision could come down any day now, and it will undoubtedly be the most important press freedom decision in a decade or more.

And while it has curiously receded from national headlines, the Justice Department also still has an active grand jury investigation open against WikiLeaks for publishing classified information. If such a prosecution succeeds, it will be open season on media organizations that publish stories that touch on information the government considers secret, putting virtually every national security journalist at risk of prosecution.

In fact, the House of Representatives held a hearing just last July in which multiple congressmen openly discussed throwing New York Times journalists in jail for publishing classified information about secret cyberattacks and CIA drone strikes. By staying quiet about the WikiLeaks grand jury, journalists only increase this risk.

The White House press secretary was quick to state that the administration is “not involved in decisions” in the AP investigation and heard about it from the media. White House officials are under investigation for this particular leak as well, so that’s no surprise. But one should not forget: the White House created this war-on-leaks monster. Congress has only encouraged its expansion, instead of investigating the wrongdoing that many of the leaks exposed.

And now, it’s out of control.

Trevor Timm is co-founder and executive director of the Freedom of the Press Foundation. Republished by permission.

A new scandal worthy of our outrage

The problem with getting all worked up over the IRS scandal is that we don’t have any outrage left over for the stories that really matter.

Tonight we learn that President Obama’s Justice Department “secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a ‘massive and unprecedented intrusion’ into how news organizations gather the news.”

And here’s some context: a piece I wrote for the Huffington Post in February 2012 headlined “Obama’s War on Journalism.”

This is the one to watch.

Media to president: You’re a liberal!

The state of the union may or may not be strong, but the State of the Union was liberal.

That was the view of media commentators from the left, right and center the morning after President Barack Obama delivered his fourth State of the Union address. The president called for a higher minimum wage, universal preschool and action on gun control and climate change, among other things. And the consensus is that his support for such measures signaled a public embrace of activist government that we’ve rarely seen since the rise of Ronald Reagan more than three decades ago.

Read the rest at the Huffington Post.

TNR’s new owner crosses a line with Obama interview

magjump2-popupThe New York Times goes deep on The New Republic’s latest reinvention. I wrote a couple of pieces for the venerable magazine many years ago, and I wish it well. But I also wish Times reporter Christine Haughney had explored a conflict of interest in TNR’s relaunch: the participation of new owner Chris Hughes in a major interview with President Obama.

I don’t necessarily begrudge Hughes’ wanting to play a role on the editorial side of TNR. It’s now his magazine, and previous owner Marty Peretz was a legendary interferer — sometimes for better, usually for worse. TNR is a small place, and it’s unrealistic to expect the publisher to exercise the same sort of restraint as, say, the publisher of a major daily newspaper.

But Hughes, the 29-year-old co-founder of Facebook, is also the “former online campaign adviser” to the president, as Haughney puts it — and by all accounts the key person in building Obama’s 2008 online presence. In April 2009, Fast Company ran a long profile headlined “How Chris Hughes Helped Launch Facebook and the Barack Obama Campaign.”

The TNR interview with Obama was conducted jointly by Hughes and the magazine’s editor, Franklin Foer. So what kind of hard-hitting questions did Hughes ask? Here they are:

Can you tell us a little bit about how you’ve gone about intellectually preparing for your second term as president?

Have you looked back in history, particularly at the second terms of other presidents, for inspiration?

You spoke last summer about your election potentially breaking the fever of the Republicans. The hope being that, once you were reelected, they would seek to do more than just block your presidency. Do you feel that you’ve made headway on that?

You inspired a lot of people in your first presidential campaign, and with your books, by talking about a new kind of politics. And now, four years later, it’s a time in Washington that’s characterized by nastiness more often that not. How do you reconcile those two things four years in?

It seems as if you’re relying more on executive orders to get around these problems. You’ve done it for gun control, for immigration. Has your view on executive authority changed now that you’ve been president for four years?

The last question is about Syria. I wonder if you can speak about how you personally, morally, wrestle with the ongoing violence there.

A not-uninteresting group of questions. To be fair, I’ve included all of them so that you could see the meaty as well as the fawning. And Hughes and Foer elicit substantive answers from the president. Nevertheless, given Hughes’ background, I found myself asking if he might have been tougher if he were interviewing a president he hadn’t worked for.

This is no more than a minor misstep. The real challenge facing TNR is that it is trying to carve out a niche in a world that has utterly changed since it was — at least in the movie “Shattered Glass”“the in-flight magazine of Air Force One.” The Internet has made all but a tiny handful of political opinion magazines irrelevant.

Getting TNR back into the game will be a daunting task. Hughes just made it slightly more daunting. I hope he comes to realize that himself.

Climate change and the limits of journalism

Hurricane Sandy flooding New York’s East Village.

The most trenchant piece of media criticism you’re likely to see this week — this month? this year? — is an essay by journalist-turned-climate activist Wen Stephenson that appears on the cover of this week’s Phoenix.

Stephenson, an alumnus of the Boston Globe, the Atlantic and WBUR Radio, argues that though the media have in recent years finally moved beyond the false equivalence of balancing the scientific consensus with the views of a few fringe denialists, news coverage of climate change remains polite to the point of timidity. Stephenson writes:

Our most respected climate scientists … are increasingly clear and vocal about one thing: we’re rapidly running out of time to address climate change in any meaningful way and avoid the risk of global climate catastrophe, with the incalculable human suffering that it will bring, quite possibly in this century.

In the face of this situation — as much as it pains me to say this — you are failing. Your so-called “objectivity,” your bloodless impartiality, are nothing but a convenient excuse for what amounts to an inexcusable failure to tell the most urgent truth we’ve ever faced.

What’s needed, Stephenson says, is for the media to move beyond the political near-silence that has descended over the climate-change issue and instead focus relentlessly on the subject.

It’s a good, important piece, and you should read it. Nevertheless, I have some quibbles.

First, I think Stephenson, for all his experience, misapprehends the limits of journalism. It’s not like our best news organizations have ignored climate change. They’ve reported on it frequently, prominently and with great skill. But they’ve done it in an oxygen-deprived environment. That is, a story in the New York Times or on network television, no matter how it’s played, is not going to get the sort of traction Stephenson would like to see without the oxygen of an engaged political system.

That’s not to say Jim Lehrer, Candy Crowley or Bob Schieffer couldn’t have put President Obama and Gov. Mitt Romney on the spot during the presidential debates. But that wouldn’t come close to the intensity generated by genuine political engagement, congressional hearings and the like. Climate change has slid off the public agenda. Journalism’s ability to force it back onto the agenda is not nonexistent, but it is limited.

Second, Stephenson’s argument does nothing to answer the sinking feeling I get whenever I read about climate change — that it’s already too late in many respects, that nothing we can do would offset the massive damage that is already occurring and that, essentially, we’re screwed. I’m not suggesting we be spared the truth. But that’s not the sort of message likely to lead to much more than sullen desperation.

Ironically, as I finish writing this, we are learning that New York City Mayor Michael Bloomberg has endorsed Obama precisely because the president takes climate change more seriously than his opponent. Citing Hurricane Sandy, Bloomberg wrote:

Our climate is changing. And while the increase in extreme weather we have experienced in New York City and around the world may or may not be the result of it, the risk that it may be — given the devastation it is wreaking — should be enough to compel all elected leaders to take immediate action.

So maybe facts on the ground — and in the sky, and the oceans — will accomplish what journalism has not: force all of us to take climate change seriously. Of course, we can’t pretend to know the relationship between Sandy and global warming. But it’s worth asking whether the storm was more severe than it would have been absent climate change; whether more storms like it are occurring; and whether Sandy caused more devastation than it otherwise would have because the seas are higher than they used to be.

Don’t misunderstand me. I completely agree with Stephenson and his observation that the mainstream media tend to seek consensus over difficult truth-telling. Maybe events like Sandy, and leaders like Michael Bloomberg, will start to change that consensus.

Photo (cc) by David Shankbone and republished under a Creative Commons license. Some rights reserved.