Collateral Damage: The War on Whistleblowers and the First Amendment
In a new piece in The New Yorker, Jane Mayer takes a big leap toward blowing the lid off of a story that has remained below most peoples' radars over the past couple of years: the Obama administration's aggressive pursuit of leaks of government information. Everybody should read Mayer's article, which focuses on the Thomas Drake investigation. A good companion piece is one I wrote, recently published in the Silha Bulletin, about all five Obama prosecutions and their broader implications for open government and the First Amendment.
People may generally be aware of the pursuit of That Dastardly Assange Character and his authority-undermining WikiLeaks, and maybe even the ongoing detention of Bradley Manning, the Army private accused of leaking documents and information to WikiLeaks. But I think fewer people are aware of the fact that the current administration is responsible for more prosecutions for the retention or disclosure of classified or sensitive information than all previous presidential administrations combined.
The prosecutions arguably contravene Obama's agenda as president-elect, which included plans to “protect whistleblowers,” because “such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled."
Moreover, they could do real harm to journalists' ability to report on government malfeasance and misuses of taxpayer dollars. Mayer's piece doesn't directly address the impact that the prosecutions of Jeffrey Sterling, Bradley Manning, Shamai Leibowitz, Stephen Kim and Thomas Drake--successful or not--could have on the public's ability to find out what the government is up to, but here are several points of concern, drawn from the Bulletin article:
The chilling effect: Pretty obvious, but important nonetheless. Government employees won't blow the whistle if doing so could land them in prison, even though the First Amendment should protect, and democracy depends on, their right to do so. Officials have argued that they don't have a problem with whistleblowing, it's just that these individuals did not raise their concerns through "proper channels," but the Drake case and others show that many whistleblowers go to the press as a last resort, not a first, after their concerns fall on deaf ears in the government.
Subpoenas to journalists: James Risen, New York Times reporter and author of "State of War," has been targeted by subpoenas for information that could reveal his source(s) for reporting on a secret CIA program. Jeffrey Sterling is the subject of a government prosecution for that leak. Two of the subpoenas, issued to Risen directly, were quashed or allowed to lapse, but others were directed to third parties--telephone companies, banks, and credit card companies--allowing the government to sweep up financial and communications records on Risen. There are some federal protections for journalists against direct subpoenas for sources, but those protections are weaker when it comes to subpoenas to third parties like telecom companies. Meanwhile, news media corporations often feel duty-bound to fight government subpoenas as champions of press freedom, but telecom companies are less likely to be so brash.
Subpoenas to social media companies: As part of its WikiLeaks investigation, the government was granted a subpoena to Twitter, under seal, seeking information on several users who supported WikiLeaks. Had Twitter not filed a motion requesting the opportunity to notify the users who were targeted by the subpoena of its existence, neither they nor we would even know it existed. Some evidence suggests Google and other social media received similar subpoenas, under gag orders, of course. As mentioned above, there's no guarantee that Facebook or Twitter will oppose such a subpoena on your behalf. Moreover, their terms of service usually maintain that they can provide your information to the government under any circumstances, with or without notifying you.
Clarifying the Espionage Act: All of these prosecutions draw directly or indirectly from the Espionage Act, a World War I-era anti-spying law that has never been clearly interpreted in terms of how it applies to the news media or what exactly constitutes the criminal retention or disclosure of “national defense information” or “classified information.” Until now, whistleblowers and their journalist collaborators have generally benefited from the law's indeterminacy--its lack of judicial interpretation. For example, a court has never found a reporter guilty of violating the Act for simply conveying secret or sensitive information, provided by a government source, to the public. But the three prosecutions of leakers up to this point have carried us increasingly closer to that question, and the most recent five could confront it. Do we want the law to recognize both the leakers and the publishers of sensitive or secret information as the same? How about people who don't leak secret documents, but simply have a conversation that discloses their contents? These cases will probably raise those questions.
Both my piece and the Mayer piece point out an example of Obama carrying forward some extremely troubling Bush-era legal approaches to governance, and urge you to stay tuned.