Tricky Barack

05.14.13

Is Obama Worse For Press Freedom Than Nixon?

James Goodale defended the New York Times during the Pentagon Papers. But Nixon had nothing on Obama, writes the First Amendment lawyer—and that’s bad news for freedom of the press.

President Barack H. Obama’s outrageous seizure of the Associated Press’s phone records, allegedly to discover sources of leaks, should surprise no one. Obama has relentlessly pursued leakers ever since he became president. He is fast becoming the worst national security press president ever, and it may not get any better.

It is believed that Obama’s Justice Department sought AP’s records to find the source of a leak that informed an AP story about a failed terrorist attack. What makes this action particularly egregious is that Justice didn’t tell AP what it was doing until two months after it obtained the records. This not only violates Justice Department guidelines for subpoenas of this sort, but also common sense, decency, and the First Amendment.

Under the guidelines, subpoenas concerning the press cannot be issued without the express approval of the Attorney General. Further, before a subpoena is issued, the government is honor bound to negotiate with the party to which it is directed.

While Attorney General Eric H. Holder, Jr. may have approved the subpoena, he apparently never told AP about it. In the meantime, the Justice Department for two months has had all the details of AP’s newsgathering. AP could bring a lawsuit to declare its First Amendment rights have been violated and seek a return of its records. Gary Pruitt, President of AP, has already made a demand for them. 

While this legal action by AP is possible, the government has picked the one federal jurisdiction most favorable to it for obtaining the source of leaks, namely, the federal court in the District of Columbia. Its subpoenas were directed to telephone companies located in D.C.

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Press Secretary Jay Carney said people comparing Obama to Nixon need to "check their history."

It was the D.C. Federal Appeals Court that upheld a subpoena for Judy Miller’s sources in 2005 in connection with the Scooter Libby trial. That court ruled that a privilege for reporters not to disclose sources of information did not protect her in the District of Columbia. She resisted and went to jail.

As a consequence of that case, the House of Representatives passed a Federal Shield Law bill on Oct. 16, 2007, by voting 398 to 21. As Senator, Obama supported this bill. As president, however, he effectively deep-sixed it.

Had the bill passed by the House become law, it would have protected AP in this instance.  Obama effectively killed this bill because as president he decided the bill needed “a national security exception.” This is to say, reporters would have to disclose sources if national security required it.

Since the bill was intended in part to protect reporters when they had national security leaks (such as AP in this instance) the “national security exception” would have swallowed up the bill, and consequently the bill died in the Senate.

The action against AP comes as no surprise because it is safe to say Obama is paranoid about stopping leaks. He has indicted six leakers, more than any other president in history. The previous record was three, and that encompasses the entire history of the country. But there surely is more to come.

Obama has indicted six leakers, more than any other president in history.

First, Obama has been pursuing James Risen, a New York Times reporter, for the source of a leak he received about Iran’s nuclear program. Risen published this leak in his book, “The State of War: the Secret History of the C.I.A.” When Obama’s Justice Department sought the source of the leak, Risen refused to give it. He won his case in the Federal District Court in Virginia in 2011. The government appealed, and that appeal has been sitting undecided for 17 months.

Should Risen lose his case on appeal, which is entirely likely, most observers believe he will refuse to testify and go to jail, as did Judy Miller. Obama will then be faced with another controversy of a similar magnitude to that he faces today.

Secondly, early next month, the trial of Pfc Bradley Manning is scheduled to begin. Manning leaked information to Julian Assange, the founder of the website WikiLeaks. Assange published the leaks, as did the Guardian, the New York Times, der Speigel, El Pais, and Le Monde.

Manning’s trial may well be the most significant “leak” trial ever. The government purportedly will produce as many as 100 witnesses or more to prove Manning, and inferentially the New York Times and the other papers, damaged national security under the Espionage Act, and aided the enemy.

This will be the first such trial that uses the Aiding the Enemy Act to prosecute a leaker.  Many First Amendment observers believe that the Aiding the Enemy Act is so broad as applied to Manning that it violates the First Amendment.  If the government succeeds in convicting Manning under this Act, an appeal raising First Amendment issues is almost guaranteed.

Lastly, Obama continues to pursue Julian Assange. He is holed up in the Ecuadorean Embassy because his lawyers believe he will be extradited to the United States where he will face prosecution for conspiring with Manning to violate the Espionage Act.

Assange is sought in Sweden for sexual practices allegedly violating Swedish law. Manning’s lawyers believe if Assange is extradited to Sweden, he will immediately be extradited to the U.S.

In December 2010 the government convened a grand jury to indict Assange. Since this grand jury has not been heard from in recent months, the public may think the grand jury has disbanded.

Assange’s lawyers believe, however, that the grand jury has already secretly indicted Assange.  This would account for the silence of the grand jury, since, if it has in fact indicted Assange secretly, government lawyers are bound by the rules of secrecy not to disclose it.

This grand jury is proceeding under a theory that is extremely dangerous to freedom of the press. It is trying to prove Assange “conspired” with Manning to violate the Espionage Act. This would only require that Manning agreed with Assange to leak information. This would be far easier to prove than trying to prove Assange, in fact, violated the Espionage Act.

It would also put in jeopardy the gathering of national security information by any reporter and so criminalize the newsgathering process. For this reason, in 2011, the Committee to Protect Journalists wrote to President Obama not to go forward with the prosecution of Assange. It pointed out that every reporter and publisher would be subject to such prosecution merely for attempting to gather the news from those with access to classified information.

Following the publication of the Pentagon Papers, President Richard Nixon tried to use the same theory to indict the New York Times and Neil Sheehan, the reporter to whom Daniel Ellsberg leaked the Pentagon Papers. The grand jury met for 17 months and faced furious opposition by reporters, academics, and others whom the government suspected of having access to the Pentagon Papers before they were published. In the end, Nixon gave up on this prosecution.

Many in the journalistic community -- in addition to the Committee to Protect Journalists -- hope Obama will also give up on the prosecution of Assange. Obama’s record on national security press matters is bad enough without being remembered for succeeding where Nixon failed.