Nearly seven months ago, CPJ published its first in-depth report on press freedom in the United States, concluding that the Obama administration’s aggressive prosecution of leakers of classified information, broad surveillance programs, and moves to stem the routine disclosure of information to the press meant that the president had fallen far short of his campaign promise to have the most open government in U.S. history. What’s changed since? A quick survey of recent events suggests not much.
That is not to say that things have been dull. National security reporters have likely been as under-slept in recent months as they were in the initial period after the Edward Snowden revelations came to light in June 2013. Media outlets around the world have continued to publish a stream of scoops based on the leaked documents. The public, Congress, and the Obama administration have maintained an impassioned debate on the balance between privacy and security. Despite CPJ’s efforts to engage the administration on some of these issues, the only response received so far was a White House spokesman’s statement to Politico that “from the day he took office, the President committed his Administration to work towards unprecedented openness in government.” Two months later, however, in light of mounting criticism from the White House press corps on restrictions to covering official activities, press secretary Jay Carney told reporters, “We’re going to work on finding ways to be responsive and provide more access.”
Yet the events of the last few weeks illustrate how, despite pledged reforms to surveillance policies, the administration’s professed desire to be more transparent on national security-related issues remains mostly unrealized. On April 21, Steven Aftergood, of the Federation of American Scientists’ Project on Government Secrecy, published a blog post pointing to a previously unnoticed intelligence directive signed in late March. The directive, signed by Director of National Intelligence James Clapper, bars any communication between intelligence community officials and a member of the media without express permission. The prohibition extends to all “intelligence-related information, including intelligence sources, methods, activities, and judgments,” and makes no distinction between classified and unclassified information.
Shawn Turner, Clapper’s spokesman, told the Guardian that the directive “merely consolidates at a higher level existing policies within the various intelligence agencies.” Indeed, the policy comes as no surprise in light of revelations last year by the McClatchy newspapers’ Washington bureau of the Insider Threat Program, which requires all federal employees to help prevent unauthorized disclosures of information by monitoring the behavior of their colleagues. Yet, as Aftergood writes, “There is no particular reason to think that routine interactions between intelligence agency employees and reporters–especially on unclassified matters–pose any kind of threat to national security, or that limiting them will offer any benefit. However, the new policy is likely to be effective in reducing the quality, independence, and critical content of intelligence-related information that is available to the press and the public.”
Journalists covering the 9/11 military tribunals and detention center at Guantánamo Bay have long faced the restrictions and challenges of trying to report on highly sensitive cases. Limitations have included a prohibition on cameras in the courtroom, a 40-second delay in hearing trial testimony, and recently, a ban on publishing the daily tally of detainees on hunger strike, according to news reports. Miami Herald reporter Carol Rosenberg, who has closely covered the prosecutions, writes that what has always been a tightly controlled process has recently become even more restricted. In a video published in late April, a team of Herald journalists reported a series of new, inscrutable rules forbidding the filming of seemingly innocuous scenes like the ferry crossing to the naval base and a PowerPoint presentation given by public affairs officers (though audio was allowed). The resulting report is an almost surreal, absurdist montage of giant lizards, truncated soldier torsos, and disjoined marching feet–with very little information about conditions at the detention center. The reporters were particularly frustrated when a Google image search later unearthed far more identifiable images of soldiers at the base, publicly displayed on official websites, than they had been allowed to film.
In the latest disruption to the prosecutions, the defense team alleged in mid-April that the FBI was investigating the leak of a manifesto written by defendant Khalid Sheikh Mohammed to Britain’s Channel 4 News and The Huffington Post, which published the document. The FBI denied that it was looking into the leak, though it confirmed having questioned one of the defendant’s lawyers and the existence of a still mysterious investigation. If the case does result in a leak prosecution, it will be only the latest in an unprecedented crackdown on leaks of sensitive information to the press. National Security reporters interviewed for CPJ’s special report confirmed that the Obama administration’s eight prosecutions of leakers under the Espionage Act–and the government’s willingness to go after journalists for their confidential sources–has severely chilled the flow of information and curtailed the press’s ability to report on what national security measures the government is carrying out in the public’s name. If the chill on revealing information to the press and to the public has been strong in Washington, it’s been near frigid in tropical Guantánamo–underscoring why a document that provides a rare insight into the tribunals has been of such interest.
But one long-fought battle on transparency was won by journalists when a federal appeals court ruled on April 21 that the government must comply with a Freedom of Information Act (FOIA) request brought by two New York Times’ reporters and the American Civil Liberties Union. Reversing an earlier decision, the court ordered the release of parts of a classified Justice Department memorandum that provided the administration’s legal justification for using drone strikes to kill U.S. citizens. The message to the administration was significant, Amy Davidson wrote in the New Yorker, in that it signaled “the government gets to have secrets, but it doesn’t get to have secret laws.”
The government’s reluctance to publish the memo was in line with the administration’s general attitude to FOIA requests, as revealed by an Associated Press study in March that found the government refused more requests in 2013 than in previous years. The aversion to releasing information was shared across agencies, but national security in particular was cited to “withhold information a record 8,496 times–a 57 percent increase over a year earlier and more than double Obama’s first year.” If the government does decide to disclose information it is relentless in its efforts to control the message. When F.D.A officials gave journalists an advance outline of new agency guidelines last month, the scoop came with a caveat forbidding reporters from seeking comment from outside sources about the material before the public release, ensuring that the first round of coverage would only report the official narrative.
In a climate where government agencies are hardly forthcoming, it is not surprising that journalists depend on whistleblowers and leakers for sensitive information. Yet in the past six months, the administration has sentenced another leaker to jail (13 months) under the Espionage Act and has refused to withdraw its subpoena seeking to compel New York Times journalist James Risen to testify about his source in a separate leak case. On April 25, the DOJ filed a brief urging the Supreme Court not to accept Risen’s appeal and argued against the concept of a reporter’s privilege to protect his or her sources. The 1972 Supreme Court decision in Branzburg v. Hayes (once described by a Federal Appeals Court judge as “clear as mud”), in the department’s view, “left no doubt that it rejected any first Amendment claim in the criminal context in order to ensure that society’s interest in law enforcement could be vindicated…Nothing has changed since Branzburg that would justify revising the longstanding common-law rule that reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by confidential sources.” The DOJ referenced its recent revision of department guidelines on issuing subpoenas to the press and legislative efforts to enshrine the reporter’s privilege, but noted the “uniquely federal interest in preventing the unlawful disclosure of classified national-defense information,” Politico reported. At a conference at The New York Times in March, Sen. Chuck Schumer asserted that Risen would benefit if a proposed federal shield law were to be passed, as it would allow him to have his day before a judge who would evaluate the necessity of his testimony, while the government would have to prove that the leak had caused “future harm.” But many journalists at the same conference questioned whether a law with an exemption for national security would ever truly benefit them. In the meantime, Risen’s fate continues to hang in the balance.
Despite the risks to Risen, the government appears to be upholding, at least for now, Attorney General Holder’s lukewarm statement that he would not prosecute the journalists who published the Snowden documents. After much anticipation, journalists Glenn Greenwald and Laura Poitras returned briefly to the U.S. from their self-imposed exiles earlier this month to accept a journalism award without incident. Their arrival came after months of inflammatory statements by senior members of the intelligence community like Clapper, who referred to the journalists as “accomplices,” and former NSA chief Gen. Keith Alexander, who accused the journalists of “selling” the documents and praised judges in the U.K. who had, in his view, established that “journalists have no standing when it comes to national security issues.”
Rather than scapegoating journalists, the greatest hope for the intelligence community to regain the public’s trust might be to let in a little sunshine on their own terms. As David Ignatius (a strong defender of the intelligence community), wrote in the Washington Post, “In a world where nothing is reliably secret, which nations will have an advantage? Some might argue it will be the true police states, such as Russia (Snowden’s absurd refuge) or China, that will be able to muzzle their populations and protect the crown jewels. But I think the opposite is likely to be true: The beneficiaries in a no-secrets world will be relatively open societies, such as the United States, that are slowly developing a culture of accountability and disclosure for their intelligence agencies, however painful the process may be. The fewer secrets, the less to protect.”