May 8, 2012 | By John Donnelly | JDonnelly@cq.com
A May 1 panel at the club, the first collaboration of its kind with the Overseas Press Club of America, spotlighted the Obama administration’s war on leaks.
The war is being waged, panelists said, on multiple fronts: a record number of prosecutions of government officials for disclosing information; alleged eavesdropping on journalists’ communications; and suing a New York Times reporter to force him to reveal a source.
The Obama administration has prosecuted six individuals for allegedly revealing or mishandling classified information. In a case now under appeal in the Fourth Circuit, the Justice Department—under both George W. Bush and Obama—repeatedly has subpoenaed New York Times reporter James Risen, a member of the panel, in an effort to learn the source of information in a chapter of his 2006 book, “State of War.” The chapter’s focus was Risen’s description of a CIA attempt to give Iran a flawed design for a nuclear weapon.
The government believes a former CIA agent named Jeffrey Sterling was the source of the information, which officials say is classified. Only two people can prove who disclosed it: Sterling, who has a right not to incriminate himself, and Risen, who may or may not have a constitutional right to protect his source.
“They want the court to rule on the fundamental constitutional issue of whether there’s a reporter’s privilege in a criminal case,” Risen said at the event, moderated by the president of the Overseas Press Club of America David Andelman.
“The basic issue is whether we can be a democracy without aggressive investigative reporting,” Risen said.
The audience included officials involved in some other highly publicized leak cases. These included Thomas Drake, a former National Security Agency official who was originally charged with mishandling classified information but against whom all serious charges were dropped after the information about allegedly wasteful spending turned out to be unclassified. Also present was John Kiriakou, a former CIA agent who is being prosecuted for allegedly disclosing the name of a covert officer; Peter van Buren, a State Department official who wrote a book about what he called wasteful spending in Iraq; and Jesselyn Radack, a former Justice Department attorney who lost her job amid her criticism of the department’s handling of the case of “American Taliban” John Walker Lindh.
The leakers also said they and Risen have been made an example of. The government’s aim in doing so, they argued, is to ensure whistleblowers know, first, that they’ll be punished if they speak up and, secondly, that reporters may not be able to assure them anonymity. If that perception takes hold—and it may already have done so, they warn—then it will bode ill for the democracy, they said.
One of the panelists, veteran national-security reporter and NSA expert James Bamford, said he’s already seen a “major chilling effect.” And Drake agreed.
Both men said they have heard accounts of U.S. intelligence agencies listening in on the electronic communications of U.S. reporters.
Ironically, the “classified” materials at issue in some of these cases have what Bamford called an “Alice in Wonderland” quality. Bamford, for instance, was once asked to return unclassified documents he had obtained under the Freedom of Information Act when an NSA official decided, after the disclosure had occurred, that the papers should be retroactively classified. And government officials are not allowed to view on their computers classified materials that were posted online by Wikileaks and then widely read and discussed.
Another panelist, Matthew Miller, a former spokesman for the Justice Department under the Obama administration, said officials only rarely prosecute cases of disclosing classified data, often because they know the classification is not justified or the release of the information is not actually harmful.
But he hastened to add that in many cases--such as, he said, the Kiriakou and Risen cases--the stakes are more serious because they involve U.S. security. There is a difference, he argued, between whistleblowers and leakers. He said the administration tends to protect the former but not the latter. And, he said, subpoenas of reporters are extremely rare and justifiably difficult to get.