The media is feeling the chilling effect from the Obama administration's record-breaking number of Espionage Act prosecutions against so-called "leakers," who are usually whistleblowers. The New York Times reported this weekend on what I've chronicled since the first of six indictments - that of National Security Agency (NSA) whistleblower Thomas Drake:
It used to be that journalists had a sporting chance of protecting their sources. The best and sometimes only way to identify a leaker was to pressure the reporter or news organization that received the leak, but even subpoenas tended to be resisted. Today, advances in surveillance technology allow the government to keep a perpetual eye on those with security clearances, and give prosecutors the ability to punish officials for disclosing secrets without provoking a clash with the press.
I'm all too familiar with this fact having represented clients who - knowing what the NSA is capable of - insisted on meeting in-person at places like the Olive Garden. Pay in cash. No phone calls. No texts. Definitely no e-mails.
The Obama administration's Espionage Act prosecutions result in a massive chilling effect on whistleblowers and potential whistleblowers working in the ever-expanding national security establishment - an effect that seems precisely the purpose of the prosecutions (the prosecutor argued that Drake needed to be punished to "send a message"). The Times recognized this weekend that the attack on sources has already turned into an attack on the media in the Espionage Act case against former Central Intelligence Agency (CIA) employee Jeffrey Sterling, where the Justice Department attempted to subpoena Times reporter Jim Risen three times. Risen commendably fought the subpoena and offered a glimpse into just how closely Big Brother is watching journalists:
I have learned from an individual who testified before a grand jury . . . that was examining my reporting about the domestic wiretapping program that the Government had shown this individual copies of telephone records relating to calls made to and from me . . .
The government is currently appealing a federal judge's ruling that sided with Risen. Risen was one of the first journalists to
recognize the Espionage Act prosecutions for what they are - both an attack on whistleblowers and an attack on the media:
I believe that the efforts to target me have continued under the Obama Administration, which has been aggressively investigating whistleblowers and reporters in a way that will have a chilling effect on the freedom of the press in the United States.
BACK in 2006, before the Obama administration made leak prosecutions routine, a panel of three federal appeals court judges in New York struggled to decide whether a prosecutor should be allowed to see the phone records of two New York Times reporters, Judith Miller and Philip Shenon, in an effort to determine their sources for articles about Islamic charities. . . . “First of all,” Judge Sack asked, “do you really have to meet in a garage to maintain your confidentiality? Second of all, can the government go and subpoena the surveillance camera?”
Six years and six prosecutions later, those questions seem as naïve as their answers are obvious: yes and yes.
(emphasis added.)
With all of today's technology, we're back to the good old Nixon-era in-person meetings in underground parking garages or coffee shops or book stores or the Olive Garden or the Tastee Diner. NOTE to government, I will be changing locations now.
A national security official essentially admitted to Lucy Dalglish of Reporters Committee for Freedom of the Press that subpoenaing reporters is not really necessary in the era of smartphones:
She continued, paraphrasing the official: “We don’t need to ask who you’re talking to. We know.”
What sort of constitutionally-protected Free Press remains when the government can know who journalists are talking to without probable cause, or any cause?
[In 2006] [t]he reporters lost. In a dissent, Judge Sack said he feared for the future.
Join the club, Judge Sack. At first I thought my clients seemed paranoid, but in reality, they just knew NSA's capabilities and penchant for deliberately dumping privacy protections.