Saying the Obama administration "has gone overboard in its zeal to find and muzzle insiders," the New York Times editorial board on Wednesday added its voice to the growing chorus of media outlets, journalists, and First Amendment advocates who say the White House is engaged in an assault on press freedom and investigative journalism itself.
In an additionally troubling pattern for the president this week, others have made the argument that Obama's behavior is reminiscent of former president Richard Nixon when it comes to the obsessive protection of information and control of political narratives.
The list of critics has grown exponentially since revelations about the Department of Justice's "unprecedented" monitoring of Associated Press journalists last week was made worse by new reporting this week that the DOJ also targeted a Fox News journalist as a possible "co-conspirator" for simply receiving information from a government source.
As the Times editorial explains:
The latest reported episode involves James Rosen, the chief Washington correspondent for Fox News. In 2009, Mr. Rosen reported on FoxNews.com that North Korea planned to launch a missile in response to the condemnation of its nuclear tests by the United Nations Security Council. The Justice Department investigated the source of the article and later indicted Stephen Jin-Woo Kim, a State Department security adviser, on charges of leaking classified information. Mr. Kim pleaded not guilty.
Normally, the inquiry would have ended with Mr. Kim — leak investigations usually focus on the source, not the reporter. But, in this case, federal prosecutors also asked a federal judge for permission to examine Mr. Rosen’s personal e-mails, arguing that “there is probable cause to believe” Mr. Rosen is “an aider and abettor and/or co-conspirator” in the leak.
Trumping even the Time's sharp rebuke, however, columnist David Sirota on Wednesday became only the latest example of those saying the when it comes to press freedom and secrecy, Obama would be viewed by history as worse than the disgraced former president Richard Nixon.
Like Nixon and the tough-talking paranoiacs around him who foremost valued loyalty and loved the idea of punishing anyone who was off message, Obama and his staff have let it be known that they pride themselves on an obsessive compulsive – read: Nixonian – devotion to a similar “enemies list” mentality when it comes to dealing with the press.
And just like Nixon’s decision to prioritize loyalty and vindictiveness against dissenters and whistleblowers resulted in infamous abuses of power, so too have Team Obama’s comparable obsessions now resulted in similarly destructive abuses.
Last week, columnist at the Philadelphia Inquirer Will Bunch, wrote: "Since the day he took office, the Obama administration has undertaken an assault on government whistleblowers—people informing citizens of what their government doesn't want them to know—that surpasses anything that Nixon or any other president has done."
And investigative reporter Jonathan Franklin, writing for Common Dreams, also raised the comparison:
Obama’s record is still a work in progress, but he shows great potential to top Nixon. Not only has the Obama administration punished leakers, but has also targeted legitimate whistleblowers to a far greater extent than any President in recent memory. Last year, the Obama administration charged John Kiriakou, a former CIA agent, under the Espionage Act for telling reporters details about waterboarding torture techniques used on suspected terrorists. Kiriakou’s decision to share details (few if any of them top secret) is hardly more revealing than Ellsberg’s handing over of a vast store of Pentagon Vietnam War strategy and assessments.
Though it is not news that the Obama administration has been waging an aggressive war against government whistleblowers since the beginning of his presidency—prosecuting more government employees than all previous administrations combined—the revelations in recent weeks have shown that extent to which Obama's DOJ is willing to go, even as it targets some of the nation's largest news outlets.
As the Huffington Post observes: "Obama's hyper-aggressive leak policy—and his administration's potential equation of routine journalistic interaction with criminality—is nothing new. But the fury in the pages and on the websites of elite outlets about these positions certainly is."
The HuffPo also reports on how the Times editorial is merely an echo of broader criticism by other journalists and press freedom groups:
On Tuesday, the board of the Committee to Protect Journalists sent an outraged letter to Attorney General Eric Holder, in which it warned that the DOJ's secret subpoenas for over 20 AP phone lines "represent a damaging setback for press freedom in the United States." This came on the heels of a letter signed by over 50 media outlets which made similar arguments.
Gabe Rottman, an attorney and policy adviser in the ACLU's legislative office, says the Rosen case is a particularly troubling example of how the DOJ's behavior jeopardizes press freedom. He writes:
What's astonishing here is that never before has the government argued that simple newsgathering—that is, asking a source to comment on a news story—is itself illegal. That would, quite literally, make virtually any question by a reporter implicating classified information a potential felony. The logic behind the FBI's warrant application would extend even to a reporter asking a question at a public press briefing at the CIA, Pentagon, or State Department. If the question is designed to elicit the disclosure of classified information, and prompts that disclosure, I don't see how the reporter couldn't be held responsible under the FBI's rationale.
Additionally, the FBI was able to keep the existence of the warrant secret from Rosen because it argued he'd committed a crime. That's similar to what happened with the AP, where the Department of Justice presumably invoked the exception to the notice requirement under DOJ guidelines, which allow for delay when notice could imperil the investigation. However, the delay provision is extremely strong medicine, because delaying notice means that the news outlet is unable to go to a court to challenge the request before the records are turned over. Consequently, the delay provision opens the door to significant abuse, as government agents have an incentive to delay notice because it allows them to avoid going in front of a judge to justify their request.
In addition, what troubles other Obama critics is the fact that the president's assault on insider leaks that are unfavorable to the administration is mirrored by an equally aggressive use of anonymous leaks to media outlets that promote the White House agenda. As Jeff Bachmann, a professor of human rights at American University points out in an op-ed for The Hill:
The Obama administration has sent a clear message. Government officials and journalists who wish to work together to create news stories through the leak of classified information that portray the president and his administration in a positive light should have no fear. And to the journalists and whistle-blowers thinking about publishing that other kind of classified information, be prepared to have your emails read, your phones tapped without your knowledge and your life and career turned upside down.
As the Guardian's Glenn Greenwald wrote earlier this week:
It is virtually impossible at this point to overstate the threat posed by the Obama DOJ to press freedoms. Back in 2006, Bush Attorney General Alberto Gonzales triggered a major controversy when he said that the New York Times could be prosecuted for having revealed the Top Secret information that the NSA was eavesdropping on the communications of Americans without warrants. That was at the same time that right-wing demagogues such as Bill Bennett were calling for the prosecution of the NYT reporters who reported on the NSA program, as well as the Washington Post's Dana Priest for having exposed the CIA black site network.
But despite those public threats, the Bush DOJ never went so far as to formally accuse journalists in court filings of committing crimes for reporting on classified information. Now the Obama DOJ has.
The Times editorial concludes that though the Obama administration talks about balancing national security secrets and the public's right to know, "accusing a reporter of being a 'co-conspirator,' on top of other zealous and secretive investigations, shows a heavy tilt toward secrecy and insufficient concern about a free press. "
From his vantage, ACLU's Gottman says that allowing the government to argue that it can police the manner in which the press operates is the central issue. He concludes:
Classified information is "leaked" every day, sometimes for partisan benefit and sometimes as part of the grand game of bureaucracies in Washington. But, just as we abide "bad" speech to give "good" speech "breathing room" under free speech law, we grant the press special protections from government scrutiny to provide ample space for the press to act "badly" to ensure information in the public interest, even if classified, has the best chance of being disclosed.
In other words, the particulars of the AP and Rosen cases are almost immaterial. The fundamental issue is that the government has lost a sense of proportion in enforcing our national security laws, and that should be of enormous concern to us all.