We now know, that the U.S. Attorney General, Eric Holder, personally signed a warrant, to investigate James Rosen, a Fox News reporter, for his role in leaks from a mid-level State Department official, Stephen Kim, that involved a sensitive source in North Korea, Sarah Chayes can write about the frustrations of over-classification.
I was always stunned to hear reporters ask me — as they did half a dozen times when I worked at the Pentagon — to show them some classified document or other. They’d just pop the question blithely, unfazed, without an apparent thought for the implications. My incredulous retort would usually reap an only half-sheepish answer: “Well, I had to ask.”
Countless national security officials have had some version of this conversation – including the State Department security adviser that Fox News correspondent James Rosen allegedly plumbed for information on North Korea. Rosen wrote in an e-mail that he’d “love to see some internal State Department analyses.”
I’ve served on both sides of the line, as an NPR reporter and a Defense Department official, and it’s from that split perspective that I’ve been observing the furor over the seizure of journalists’ telephone and e-mail records in Justice Department investigations of national security leaks. Especially troubling to some reporters and pundits is a search warrant application suggesting that Rosen was “an aider and abettor and/or co-conspirator” with his source. Commentators have decried the Justice Department for criminalizing journalism itself.
The value to democracy of a courageous and unfettered press poking into back corners that agencies would rather keep hidden is incontrovertible. But I find myself wondering why journalists shouldn’t shoulder some responsibility for transgressions they often goad their sources to commit.
Far too much information is protected by unwarranted classification. It’s hard to take a system seriously that places so many gigabytes of material that are not critical to national security under the same umbrella as the few nuggets that are. I’ve seen a New Yorker article included among prep documents for a National Security Council meeting stamped SECRET//NOFORN (meaning that only cleared U.S. citizens were allowed to read it). I’ve had a colleague contradict a sunny e-mail he sent me on the unclassified system with a SECRET snarl. Such misuse makes a mockery of rules that the leak investigations seek to enforce.
At least as troubling is the double standard that has seemed to apply in the recent investigations. The six criminal prosecutions under the Obama administration have all targeted working-level government employees. Meanwhile, senior officials leak — or authorize leaks — with impunity.
Buried in those leaks might just be the Obama administration’s slow realization, according to EW, that the United States is losing in Afghanistan, which might explain why it is so sensitive about leaks. It’s reassuring to read her request from readers for “…practical recommendations for how to reduce the amount of material that gets classified, and how to change the incentives for over-classification.” I just assume, that like the Federal tax code, classification is a Frankenstein monster of a rickety mud shack cobbled together of legislation and executive orders that no longer reflects any common vision of what’s useful or beneficial to national security. In other words, there are interests involved. So, whose interests should we promote and who loses in the battle to classify over-classification?
Norm Ornstein takes the responsible line. We need to distinguish Holder’s investigation of Rosen from the Obama administration’s witchhunt against Bradley Manning. Whistle-blowers are not leakers. Whistle-blowers and journalists are necessary institutions for a republican society, because they frustrate government abuse of the power it receives from citizens. But, that presupposes that professionals comport themselves responsibly, to win the trust of their consumers.
The press is rightly disturbed about the AP leak probe, and should unquestionably look into the facts of the Rosen case, but unfortunately, they have consistently refused to do that. They are not the same thing. In the process of circling the wagons around James Rosen, they are protecting some of the very worst practices of their profession, and ignoring key questions, like who told James Rosen it was his job to manipulate U.S. foreign policy?
Yet, the Bradley Manning case shows the government at its worst, even as Rosen was setting new lows for his tribe.
The government has charged Manning under the Espionage Act of 1917, a law that has been used to prosecute officials for leaking information to the press only three times before the current administration took office. The Obama Justice Department has prosecuted six people under the act, including the State Department contractor accused of leaking to Fox News reporter James Rosen. The DOJ also secretly obtained two months worth of phone records for 20 phone lines from the Associated Press.
“It does seem like the administration has reacted to the Manning situation and been influenced significantly by it,” Joel Kurtzberg, a lawyer who deals with First Amendment and media cases, told MSNBC. “The administration has been pursuing leakers in a way that is more aggressive than any in history, and it’s doing so in a way that will almost certainly chill reporting on important issues of public concern.”
The contents of the leaked material is widely known, but the proceedings have so far remained obscure. There is no public docket of filings in a court martial and no official transcripts exist, even for hearings that were open to the public. In April, a military appeals court rejected a case brought by the Center for Constitutional Rights on behalf of journalists seeking access to court documents. The Center filed a civil complaint in Maryland in May. “The legitimating function of openness is as important as its role in making proceedings more likely to arrive at accurate outcomes,” the Center’s complaint read.
The prosecution is expected to call up to 150 witnesses over the course of three months, and two dozen of those will testify at least in part in closed sessions in order to safeguard classified material. “Because Manning pled guilty to the leak already, that should reduce the need for secrecy at trial,” Ben Wizner, Director of the Speech Privacy and Technology Project at the American Civil Liberties Union told MSNBC. “The government doesn’t need to talk about sources and methods” while attempting to prove guilt.
“If Manning were convicted of these charges based on evidence that the public didn’t see,” Wizner says, it would have a major chilling effect. “The question for public is how do you measure Bradley Manning’s violation of the rules against the public benefits and alleged harms of his disclosures.”
I seriously doubt the Obama administration, or either of the other two branches, will meet journalists halfway to devise a better classification scheme. I should just make my peace with messiness and put my hopes in a decent battle of institutions against one another. It’s a very esoteric kind of cage match, but with defeat in Afghanistan looming, perhaps the Obama administration should make peace with the journalists’ guild for a more supportive line.
It will never happen.