Culture

Obama's War on Whistle Blowers Could Send Investigative Journalism Back to the Stone Age

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In November of last year the Federal Trade Commission settled its suit against Facebook for violating users' privacy. Among other things, the settlement requires Facebook to undergo "privacy audits" for the next two decades. There's something deeply absurd about an agency under President Obama hammering anyone for violating users' privacy, much less Facebook: This administration has snooped egregiously and unlawfully since its earliest days; you'd think the FTC would be too embarrassed to go after a site whose users give away information voluntarily.

Take, for instance, the Obama administration's new tactics for catching and prosecuting whistle blowers. Gone are the days when reporters will be able to protect a source's identity by refusing to comply with a subpoena. Hell, gone are the days when reporters will even be subpoened. By reading email, listening to phone conversations, and intercepting texts, security agencies already know who journalists are talking to, and what they're talking about. The New York Times published a piece yesterday on the DOJ's increasing ability to prosecute with as little due process as possible. The standard is evolving in front of our eyes: 

MR. ASHCROFT authorized a single subpoena for reporters' testimony or records in his four years in office, Mr. Corallo said. He would not say so, but that subpoena was probably the one that troubled Judge Sack in 2006. The reporters lost. In a dissent, Judge Sack said he feared for the future.

"Reporters might find themselves," he wrote, "as a matter of practical necessity, contacting sources the way I understand drug dealers to reach theirs—by use of clandestine cellphones and meeting in darkened doorways. Ordinary use of the telephone could become a threat to journalist and source alike. It is difficult to see in whose best interests such a regime would operate."

What he imagined may now be reality. Consider the most recent prosecution, of John C. Kiriakou, a former C.I.A. agent who is said to have disclosed classified information to journalists in 2008 about the capture and interrogation of an operative of Al Qaeda.

The criminal complaint in the case says it is based largely on "e-mails recovered from search warrants served on two e-mail accounts associated with Kiriakou."

Only one of the journalists involved in the Kiriakou case has been publicly identified: Scott Shane of The Times. A spokeswoman for The Times has said that neither the paper nor Mr. Shane had been contacted by investigators or had provided any information to them. The digital trail, it seems, was enough.

In a second case, against Jeffrey A. Sterling, a former C.I.A. officer accused of providing classified information to another Times reporter, James Risen, for a 2006 book, the government has been more aggressive, insisting that Mr. Risen must testify. He has refused to say anything about confidential matters, and Judge Leonie M. Brinkema of the Federal District Court in Alexandria, Va., has sided with him. She said there were other ways to prove the case against Mr. Sterling, including "numerous telephone records, e-mail messages, computer files and testimony that strongly indicates that Sterling was Risen's source."

The government has appealed that ruling. "The circumstantial evidence of guilt, though compelling, is simply not comparable to Risen's eyewitness testimony," prosecutors told the federal appeals court in Richmond, Va., in a brief filed last month.

The appeal in Mr. Risen's case may, at first blush, suggest that the new primacy of digital surveillance in leak investigations is overstated. But Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the case was a vestige of another era.

She described a conference in June organized by the Aspen Institute that brought together lawyers, journalists and intelligence officials to talk about government secrecy. The ground rules, she said, were that the identities of those involved were to be kept confidential, but what was said could be reported.

"I was told in a rather cocky manner" by a national security representative, Ms. Dalglish recalled, that "the Risen subpoena is one of the last you'll see."

She continued, paraphrasing the official: "We don't need to ask who you're talking to. We know."

While rent seeking tech companies continue to partner with the Obama Administration (including one whose motto is "Do No Evil"), journalists and government employees will soon be reduced to "meeting in darkened doorways."