By Tom Squitieri and Larry Martz
The Obama administration is the most aggressive in history in pursing those who leak key information to reporters – even if that material is not as “top secret” as the White House contends, an OPC panel of two distinguished writers and a former Justice Department spokesman agreed in a dramatic discussion of the crusade against leaks of government secrets. But the result is a threat to America’s First Amendment rights, the writers warned.
The OPC joined with the National Press Club for the first time in history to sponsor an event. The discussion, moderated by OPC president David Andelman at the NPC headquarters in Washington, featured James Risen of The New York Times, who has repeatedly been subpoenaed to testify against an accused leaker; James Bamford, author of The Puzzle Palace, the authoritative book about the National Security Agency; and Matthew Miller, who served as the Justice Department’s public affairs director for the Administration’s first two years.
They were joined by a cantankerous, highly participatory audience.
All the panelists agreed with Risen’s observation that “we can’t have a democracy without aggressive reporting.” They also agreed that the system of classifying documents as “secret” or “top secret” was haphazard, dated and ineffective.
Miller, at the Justice Department when it issued one of several subpoenas for Risen, argued that seeking the reporter’s possible testimony was one of the few options the Justice Department felt it had in the case against Jeffrey Sterling, a former CIA officer who is accused of leaking details about efforts to sabotage the Iranian nuclear program.
“That is the hardest question, raising difficult questions that are unsettled in court,” Miller said, as Risen sat quietly to his left. “What happens is that too many people equate investigating leaks with (going after) whistleblowers and the press.” He said the substance of the leaks also get investigated, but indictments don’t always follow. If there’s no prosecution of wrongdoers, Miller said, people jump to the conclusion that the decision was political — which, he said, doesn’t happen “in the vast majority of cases.” But Bamford argued that politics “obviously” played a part “in all these cases.”
Miller said prosecution of leaks harmful to national security — including the sabotaging of Iranian nuclear policy and the exposure of a covert CIA operative – is justified. “What is the government to do, look the other way?” The Justice Department actually decides not to prosecute in most cases, he said, because the leakers are legitimate whistle-blowers trying to expose wrongdoing. The leaker who blew the government’s warrantless wiretapping program “on the cover of Newsweek” was never taken to court, Miller said. But in blatant cases where national security is harmed, the government “has to move” against them. He defended most of the six cases in which the Obama Justice Department has prosecuted leaks under the Espionage Act as fitting this description.
“Is the system broken?” Andelman asked. “It’s a joke, and it’s always been a joke,” Risen answered. Miller conceded that “We do, without doubt, over-classify, and we classify things that shouldn’t be.” Few in the government actually know what has been released, Bamford argued, and classification in general is meaningless. “Just because the government says it is secret or top secret does not mean it is,” he said.
Bamford noted that much of the material in his NSA book came from Freedom of Information requests, but then the NSA tried to reclassify documents as secret and take the material back. “They threatened me with prosecution if I didn’t give it back,” he said. “I never gave it back, and they never prosecuted me.” Likewise, the NSA raided a university library to remove documents Bamford used that had been public.
Bamford referred to the case of a former NSA top official, Tom Drake, who was in the audience, who faced 35 years in prison on 10 felony counts for telling a reporter that an NSA software monitor program was both intrusive on privacy and ineffective. Bamford showed that the alleged secrets Drake told were actually unclassified, and the case was settled as a misdemeanor with no penalty. But the judge in the case berated the Justice Department for putting Drake “through hell for four years” of fighting the charges.
In part, Bamford said, one goal of filing the charges was to create “a chilling effect” on other potential whistle-blowers. Drake agreed, adding that the tactic is working. “What you have is the expansion of the national security state,” he said, warning that what has so far been exposed about unconstitutional actions including torture, rendition of suspects, wiretaps without warrants and data mining is “just the tip of the iceberg.”
Both Drake and Bamford argued that there is a double standard by the government, with leakers facing jail and no prosecution of those who actually torture, eavesdrop without warrants or cooperate with government intrusions they know are illegal. “What the government criminalizes is what the government wants to keep secret,” Drake said. “There’s no indictment for those who actually engage in illegal behavior.” “Everyone who wears a flag lapel pin and salutes the White House gets (a pass) and the little guy gets picked on,” Bamford agreed.
Miller, who agreed to join the panel after Attorney General Eric Holder declined an invitation, conceded that “you could argue” that Drake was genuinely trying to expose a bad government program. He also noted that two of Risen’s subpoenas have been thrown out by Federal judges, though the government is appealing those decisions. But he defended the prosecution of Risen’s alleged source, Sterling, and the military case against Pvt. Bradley Manning, the reported source of last year’s massive WikiLeaks document dump.
Risen said an unspoken government agreement to tolerate most leaks ended after the 2001 attacks, and that government actions have soared since, with the Obama administration much more aggressive than any other administration in history. But in the new reality of an unprecedented kind of war, that puts reporters in the cross-hairs. “If you are a war correspondent in the war on terror, you are dealing with classified information every say,” Risen said. “Everything you write about is secret.”
The government’s appeal in Risen’s case is to be argued on May 18. “I sold a lot of books at the FBI and the Justice Department,” Risen said. “They said there is no reporter’s privilege. They want the court to rule on the issue of a reporter’s privilege in a criminal case. It would give it a broad impact.”
He said the goal of terrorism is to upset a society and force changes in it, and that has been the real consequence of the assault on leaks and the media. “The U.S. has been transformed by our fears,” Risen said. “Do you want to give up democracy to fight terrorism? That’s what this is really all about.”