05.16.13 8:45 AM ET
AP, Valerie Plame, and the Long History of Government Press Interference
Two days into what’s shaping up to be the most scandal-filled week of Barack Obama’s presidency, news broke that “the most transparent administration in history” was responsible for secretly obtaining two months’ worth of Associated Press telephone records, presumably in search of the source for a story on a foiled 2012 terror plot in Yemen. The news of the backdoor subpoenas has reignited a push for a media shield law that would keep journalists from having to give up their sources—federal legislation that was introduced to the Senate in 2009 but never came to a vote. The debate over whether government has the right to interfere in the press’s news-gathering process is as old as both institutions themselves, and this most recent instance brings to mind some of the most prominent cases of government meddling in the media.
John Nugent, Held Hostage in the Capitol
The first American journalist to be jailed for refusing to disclose a source was John Nugent in 1848. A reporter for the New York Herald, Nugent received and published the leaked Treaty of Guadalupe-Hidalgo, which would end the Mexican War. The treaty had recently been approved but was still a secret, so as a means of investigating the leak, a Senate committee held Nugent inside the Capitol building, demanding he give up the source of his information. After a month of refusing to name names, Nugent was released.
Richard Nixon and the Pentagon Papers
Former president Richard Nixon had a penchant for taking liberties with the law in the name of protecting both national security and his own popularity, even asserting that “if the president does it, then it’s not illegal.” But prior to approving the Watergate burglary and wiretapping operation that ultimately cut short his presidency, Nixon instigated one of the most significant First Amendment cases in Supreme Court history. In June 1971, The New York Times began printing excerpts of the Pentagon Papers, a secret Defense Department account showing that the public had been lied to repeatedly during the Vietnam War, provided by disillusioned military analyst Daniel Ellsberg. The contents of the papers were more perhaps damning to the Kennedy and Johnson administrations but were nonetheless embarrassing for Nixon. He attempted to discredit Ellsberg, assembling a team to steal medical records from his psychiatrist’s office, and use executive action to demand that the Times halt publication. When the paper refused, the government sued for a restraining order against the Times and was temporarily successful—though by then Ellsberg had already distributed copies of the papers to The Washington Post and would soon share them with other publications. The Times fought back and the case eventually reached the Supreme Court, which determined that the government was not justified in its attempt to restrain the press, arguing that Nixon’s “national security” claim was too broad and that, in lieu of oversight from the legislative and judicial branches of government, an informed public is needed to make sure the president doesn’t abuse his power.
The Bush Administration’s Warrantless Wiretapping
In determining whether to publish the Pentagon Papers, The New York Times sought counsel from in-house and outside lawyers, but not from the government. But in 2004, when the paper became aware that under an executive order from President Bush, the National Security Agency had been wiretapping people in the U.S. without a warrant to search for evidence of terrorist activity, it let the White House know. As a result, the story almost never saw the light of day. Despite the Times reporters Jim Risen and Eric Lichtblau’s discovery that the legality of the wiretapping program was the subject of contentious debate within the administration, officials persuaded Times editors that not only was the program legal, it was extremely vital to the success of the war on terror, and exposing it would threaten national security. So the story was held but not quite killed. More than a year later, Risen and Lichtblau tried again, narrowing the focus of their reporting and clarifying that there was concern within the ranks that Bush had overstepped the boundaries of his power by authorizing the wiretaps. Once it became overwhelmingly clear that the government had lied to keep the story from the public, Times editor Bill Keller was sold. This time administration officials failed to make the case that the Times would be at least partially responsible for the next terror attack if the story ran. The American public found out about the warrantless wiretapping program three years after it started and 13 months after The New York Times did.
Judith Miller and the Valerie Plame Affair
The NSA wiretap story is just one example of the Bush administration’s attempts to interfere with press coverage of the war on terror. One of the best-known cases of government interference is known as “the Plame Affair.” In July 2003 former U.S. ambassador Joseph Wilson wrote an op-ed for The New York Times disputing a claim President Bush had made in his State of the Union Address months earlier that Iraq was in the process of purchasing material from Niger to build nuclear weapons. The year before, the CIA sent Wilson to Niger on a fact-finding mission, during which he discovered that the African nation was not selling uranium to Iraq. In its first act of press interference, the administration is believed to have released the identity of Wilson’s wife, undercover CIA operative Valerie Plame, to several members of the media through the proxy of vice presidential chief of staff I. Lewis “Scooter” Libby as retaliation for Wilson’s article. Conservative columnist Robert Novak outed Plame in a column about Wilson. Disclosing the identity of covert CIA officers is illegal, and the CIA pursued a grand jury investigation that resulted in no convictions for the leak itself but in the indictment of Libby for lying to a grand jury and federal investigators, and obstructing justice.
It was during Libby’s trial that the second act of press interference took place. Judith Miller, a New York Times reporter who had spent much of her career covering Saddam Hussein’s quest for weapons of mass destruction, was called to testify in the United States v. Libby. Though Miller never wrote about Plame, she was one of the reporters who knew about Wilson’s wife’s role as a CIA operative and was asked to disclose who told her. Refusing to give up her source, Miller spent 85 days in jail before she finally acknowledged finding out about Plame from Libby. Although she would later be fired for her inaccurate reporting on Iraq, Times publisher Arthur Sulzberger Jr. defended Miller against the subpoena, saying at the time, “Journalists should not have to face the prospect of imprisonment for doing nothing more than aggressively seeking to report on the government’s actions. Such subpoenas make it less likely that sources will be willing to talk candidly with reporters, and ultimately it is the public that suffers.”
Josh Wolf, Video Blogger
The technological and media landscape has vastly changed over the past few years—and with it the definition of what constitutes a journalist. No case has highlighted this transformation better than that of Josh Wolf, the freelance video blogger who defied a grand jury subpoena to testify on a violent G8 protest he’d covered in San Francisco in July 2005. Federal prosecutors turned to Wolf, who had sold parts of his video footage to a local television station, to help them investigate the beating of an officer and a possible arson attempt on a police car. Initially, Wolf offered to hand over his video as long as the prosecutors promised not to call on him to testify. He was turned down and presented with a grand jury subpoena. When he refused to testify, Wolf was arrested and ended up spending 7½ months in prison—the longest time ever served by a journalist held in contempt. While Wolf and his supporters insisted that his case was proof that journalists need a federal shield law, prosecutors argued that Wolf wasn’t a journalist at all but a political activist who posted his videos and opinions on his personal blog. Ultimately, Wolf’s lawyers were able to renegotiate his original offer and he was released without having to testify, but whether bloggers or so-called citizen journalists are afforded the same protections as members of the established media is still up for debate.