Leonard Downie Jr
By Leonard Downie Jr.
In the Watergate era, the Nixon administration’s telephone wiretaps were the biggest concern for journalists and sources worried about government surveillance. That was one of the reasons why Bob Woodward met with FBI official Mark Felt (aka “Deep Throat”) in an underground parking garage in Arlington, Virginia, and why he and Carl Bernstein did much of their reporting by knocking on the front doors of their sources’ homes. Except for the aborted prosecution of Daniel Ellsberg for the leak of the Pentagon Papers, criminal culpability or pervasive surveillance were not major concerns, especially after Richard Nixon resigned the presidency in 1974.
Not so now. With the passage of the Patriot Act after the September 11, 2001 terrorist attacks, a vast expansion of intelligence agencies and their powers, the aggressive exploitation of intrusive digital surveillance capabilities, the excessive classification of public documents and officials’ sophisticated control of the news media’s access to the workings of government, journalists who cover national security and do investigations are facing vast and unprecedented challenges in their efforts to hold the government accountable to its citizens.
They find that government officials are increasingly fearful of talking to them, and they worry that their communications with sources can be monitored at any time.
So what are they doing? Many reporters covering national security and government policy in Washington these days are taking precautions to keep their sources from becoming casualties in the Obama administration’s war on leaks. They and their remaining government sources often avoid telephone conversations and email exchanges, arranging furtive one-on-one meetings instead. A few news organisations have even set up separate computer networks and safe rooms for journalists trained in encryption and other ways to thwart surveillance.
These concerns, expressed by numerous journalists I interviewed, are well-founded. Relying on the 1917 Espionage Act, which was rarely invoked before President Barack Obama took office, this administration has secretly used the phone and email records of government officials and reporters to identify and prosecute government sources for national security stories.
Just two weeks ago, the Justice Department announced that Donald J Sachtleben, a former FBI bomb technician who had also worked as a contractor for the bureau, had agreed to plead guilty to “unlawfully disclosing national defence information relating to a disrupted terrorist plot” in Yemen last year. “Sachtleben was identified as a suspect in the case of this unauthorised disclosure” to an Associated Press reporter, according to the announcement, “only after toll records for phone numbers related to the reporter were obtained through a subpoena and compared to other evidence collected during the leak investigation.”
The Justice Department secretly subpoenaed and seized from telephone companies two months of records for 20 AP phone lines and switchboards used by more than 100 reporters in four of its news bureaus. In other criminal leak investigations, the Obama administration has subpoenaed and seized records of telephone calls and emails between several New York Times reporters and government officials, between a Fox News reporter and a State Department contract analyst, and between two journalists and a former CIA officer.
Times reporter Scott Shane, whose email traffic with the former CIA officer was seized, told me that the chilling lesson “is that seemingly innocuous emails not containing classified information can be construed as a crime.”
In addition to ongoing leak investigations, six government employees and two contractors, including fugitive NSA contractor Edward Snowden, have been prosecuted since 2009 under the Espionage Act for providing information to reporters about, among other subjects, the NSA’s communications surveillance, the CIA’s aggressive interrogation of terrorism suspects and, in the case of Army Private Bradley Manning, diplomatic cables and Iraq and Afghanistan war documents.
Even though they violated laws governing classified information, many of the leakers could be characterised as whistle-blowers rather than spies; they publicised actions for which the government should be held accountable. But the Obama administration has drawn a dubious distinction between whistle-blowing that reveals bureaucratic waste or fraud, and leaks to the news media about unexamined secret government policies and activities; it punishes the latter as espionage.
Every disclosure to the press of classified information now triggers a leak investigation, said Washington Post national news editor Cameron Barr. “Investigations can be done electronically. They don’t need to compel journalists to reveal sources.”
The Post’s Justice Department reporter, Sari Horwitz, said a Justice official told her that “access to email, phone records and cellphones make it easier to do now.”
After the New York Times published a 2012 story by David E. Sanger about covert cyberattacks by the United States and Israel against Iran’s nuclear enrichment facilities, federal prosecutors and the FBI questioned scores of officials throughout the government who were identified in computer analyses of phone, text and email records as having contact with Sanger.
“A memo went out from the chief of staff a year ago to White House employees and the intelligence agencies that told people to freeze and retain any email, and presumably phone logs, of communications with me,” Sanger said. As a result, longtime sources no longer talk to him. “They tell me: ‘David, I love you, but don’t email me. Let’s don’t chat until this blows over’.”
Sanger, who has worked for the Times in Washington for two decades, said, “This is most closed, control-freak administration I’ve ever covered.”
Many leak investigations include lie-detector tests for government officials with access to the information at issue. “Reporters are interviewing sources through intermediaries now,” Barr told me, “so the sources can truthfully answer on polygraphs that they didn’t talk to reporters.”
The investigations have been “a kind of slap in the face” for reporters and their sources, said Smith of the Center for Public Integrity. “It means you have to use extraordinary measures for contacts with officials speaking without authorisation.”
In response to an uproar from journalists over the secret subpoenas and seizures of phone and email records, the Justice Department somewhat tightened its guidelines for when and how reporters and their records can be subpoenaed. But it kept an exception for disclosures of classified information considered harmful to national security. And while Justice was working with the media on the guideline revisions, it was using the secretly seized AP phone records to identify and convict FBI contractor Sachtleben. In its announcement of his plea agreement, Justice vowed to continue making aggressive use of the national security exception.
This fear transcends American shores, especially because NSA surveillance of non-American communications is authorised by US law. All journalists at Britain’s BBC, for example, must now take training in information security, according to Peter Horrocks, its director of global news.
Will Obama recognise that all this threatens his often-stated but unfulfilled goal of making government more transparent and accountable? None of the Washington news media veterans I talked to were optimistic.
WP-BLOOMBERG
By Leonard Downie Jr.
In the Watergate era, the Nixon administration’s telephone wiretaps were the biggest concern for journalists and sources worried about government surveillance. That was one of the reasons why Bob Woodward met with FBI official Mark Felt (aka “Deep Throat”) in an underground parking garage in Arlington, Virginia, and why he and Carl Bernstein did much of their reporting by knocking on the front doors of their sources’ homes. Except for the aborted prosecution of Daniel Ellsberg for the leak of the Pentagon Papers, criminal culpability or pervasive surveillance were not major concerns, especially after Richard Nixon resigned the presidency in 1974.
Not so now. With the passage of the Patriot Act after the September 11, 2001 terrorist attacks, a vast expansion of intelligence agencies and their powers, the aggressive exploitation of intrusive digital surveillance capabilities, the excessive classification of public documents and officials’ sophisticated control of the news media’s access to the workings of government, journalists who cover national security and do investigations are facing vast and unprecedented challenges in their efforts to hold the government accountable to its citizens.
They find that government officials are increasingly fearful of talking to them, and they worry that their communications with sources can be monitored at any time.
So what are they doing? Many reporters covering national security and government policy in Washington these days are taking precautions to keep their sources from becoming casualties in the Obama administration’s war on leaks. They and their remaining government sources often avoid telephone conversations and email exchanges, arranging furtive one-on-one meetings instead. A few news organisations have even set up separate computer networks and safe rooms for journalists trained in encryption and other ways to thwart surveillance.
These concerns, expressed by numerous journalists I interviewed, are well-founded. Relying on the 1917 Espionage Act, which was rarely invoked before President Barack Obama took office, this administration has secretly used the phone and email records of government officials and reporters to identify and prosecute government sources for national security stories.
Just two weeks ago, the Justice Department announced that Donald J Sachtleben, a former FBI bomb technician who had also worked as a contractor for the bureau, had agreed to plead guilty to “unlawfully disclosing national defence information relating to a disrupted terrorist plot” in Yemen last year. “Sachtleben was identified as a suspect in the case of this unauthorised disclosure” to an Associated Press reporter, according to the announcement, “only after toll records for phone numbers related to the reporter were obtained through a subpoena and compared to other evidence collected during the leak investigation.”
The Justice Department secretly subpoenaed and seized from telephone companies two months of records for 20 AP phone lines and switchboards used by more than 100 reporters in four of its news bureaus. In other criminal leak investigations, the Obama administration has subpoenaed and seized records of telephone calls and emails between several New York Times reporters and government officials, between a Fox News reporter and a State Department contract analyst, and between two journalists and a former CIA officer.
Times reporter Scott Shane, whose email traffic with the former CIA officer was seized, told me that the chilling lesson “is that seemingly innocuous emails not containing classified information can be construed as a crime.”
In addition to ongoing leak investigations, six government employees and two contractors, including fugitive NSA contractor Edward Snowden, have been prosecuted since 2009 under the Espionage Act for providing information to reporters about, among other subjects, the NSA’s communications surveillance, the CIA’s aggressive interrogation of terrorism suspects and, in the case of Army Private Bradley Manning, diplomatic cables and Iraq and Afghanistan war documents.
Even though they violated laws governing classified information, many of the leakers could be characterised as whistle-blowers rather than spies; they publicised actions for which the government should be held accountable. But the Obama administration has drawn a dubious distinction between whistle-blowing that reveals bureaucratic waste or fraud, and leaks to the news media about unexamined secret government policies and activities; it punishes the latter as espionage.
Every disclosure to the press of classified information now triggers a leak investigation, said Washington Post national news editor Cameron Barr. “Investigations can be done electronically. They don’t need to compel journalists to reveal sources.”
The Post’s Justice Department reporter, Sari Horwitz, said a Justice official told her that “access to email, phone records and cellphones make it easier to do now.”
After the New York Times published a 2012 story by David E. Sanger about covert cyberattacks by the United States and Israel against Iran’s nuclear enrichment facilities, federal prosecutors and the FBI questioned scores of officials throughout the government who were identified in computer analyses of phone, text and email records as having contact with Sanger.
“A memo went out from the chief of staff a year ago to White House employees and the intelligence agencies that told people to freeze and retain any email, and presumably phone logs, of communications with me,” Sanger said. As a result, longtime sources no longer talk to him. “They tell me: ‘David, I love you, but don’t email me. Let’s don’t chat until this blows over’.”
Sanger, who has worked for the Times in Washington for two decades, said, “This is most closed, control-freak administration I’ve ever covered.”
Many leak investigations include lie-detector tests for government officials with access to the information at issue. “Reporters are interviewing sources through intermediaries now,” Barr told me, “so the sources can truthfully answer on polygraphs that they didn’t talk to reporters.”
The investigations have been “a kind of slap in the face” for reporters and their sources, said Smith of the Center for Public Integrity. “It means you have to use extraordinary measures for contacts with officials speaking without authorisation.”
In response to an uproar from journalists over the secret subpoenas and seizures of phone and email records, the Justice Department somewhat tightened its guidelines for when and how reporters and their records can be subpoenaed. But it kept an exception for disclosures of classified information considered harmful to national security. And while Justice was working with the media on the guideline revisions, it was using the secretly seized AP phone records to identify and convict FBI contractor Sachtleben. In its announcement of his plea agreement, Justice vowed to continue making aggressive use of the national security exception.
This fear transcends American shores, especially because NSA surveillance of non-American communications is authorised by US law. All journalists at Britain’s BBC, for example, must now take training in information security, according to Peter Horrocks, its director of global news.
Will Obama recognise that all this threatens his often-stated but unfulfilled goal of making government more transparent and accountable? None of the Washington news media veterans I talked to were optimistic.
WP-BLOOMBERG
