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The investigation into the Fox News reporter has produced some very broad claims about what is and isn't proper conduct for journalists and sources.

Cross posted from Pruning Shears.


Earlier this week I had a brief and unproductive Twitter exchange with Libby Spencer over leaks, whistleblowers and journalists.  It was prompted by this from BooMan:

We need to get our heads around the distinction between a whistleblower, who observes criminal or unethical behavior by government officials, and a criminal who leaks highly sensitive classified intelligence that burns sources and endangers our national security. Sometimes these two things can overlap, as when we learned that the NSA was conducting warrantless wiretaps in violation of current law. Bradley Manning revealed official wrongdoing, too, but he also did so with no discrimination.
Libby supported this point of view, I disagreed, and it quickly became obvious we wouldn't get anything productive done 140 characters at a time.  So here is the post-length treatment.  The summarized version of her position (correct me if I'm wrong Libby!) is to side with the government in cases where, as BooMan writes, a leaker provides information without discrimination, or when outlets engage in irresponsible journalism.

I think the distinction between a "whistleblower" and "a criminal who leaks highly sensitive classified intelligence that burns sources and endangers our national security" is specious (though he allows that "these two things can overlap").  My whistleblower may be your criminal who leaks etc.  It largely depends on whether you support the leak in question.

BooMan's post starts out looking at the recently revealed Justice Department (JD) investigation of James Rosen.  Coming on the heels of the AP phone records seizure, it immediately became linked to that scandal.  (That's very fortunate timing!  I wonder how the WaPo managed to unearth that "newly obtained court affidavit" at such a critical moment.)

There seem to be two big differences between them, though.  The first is that Rosen was more narrowly targeted than the AP was, the second is that Rosen appeared to want to force a change in US policy as part of his reporting.  So at least some the details on this particular case seem to support the JD's actions.

The problem is that BooMan is not content to stay with the details of that one particular case.  He moves on to some pretty troubling generalizations instead - his condemnation of indiscriminate leaking, for example.

Whistleblowers typically approach journalists in part because they want an organization with experience and resources to comb through the documents and figure out what to publish.  Daniel Ellsberg indiscriminately leaked 7,000 pages to The New York Times.  Do Libby and BooMan consider him a criminal?

We can debate whether WikiLeaks is a media outlet (I think it is, or at least it was at the time of its Afghan war diary coverage), but Manning's smuggled documents were published simultaneously - and with the cooperation of - The Guardian, The New York Times and Der Spiegel.  Did those outlets engage in irresponsible journalism?

This debate doesn't happen in a vacuum.  Those who have been on the receiving end of the surveillance state's attention tend to look at a story like Rosen's in the broader context of the government attacks on the First Amendment.  If national security reporting is now fair game for government attack, there's no reason to think it will remain confined to sketchy characters like Rosen.  Scoops like those from Charlie Savage and the New York Times will also presumably receive more scrutiny as well.

The American government's sordid history of deception with highly classified intelligence goes back a long way.  It's somewhat astonishing to read someone uncritically pass along government claims that something endangers what BooMan calls "our" precious bodily fluids national security given its track record.  One of the most visible tools used to keep information from the public has been the state secrets privilege (SSP), which was literally founded on a lie:

Although the state secrets privilege has existed in some form since the early 19th century, its modern use, and the rules governing its invocation, derive from the landmark Supreme Court case United States v. Reynolds, 345 U.S. 1 (1953).  In Reynolds, the widows of three civilians who died in the crash of a military plane in Georgia filed a wrongful death action against the government.  In response to their request for the accident report, the government insisted that the report could not be disclosed because it contained information about secret military equipment that was being tested aboard the aircraft during the fatal flight.  When the accident report was finally declassified in 2004, it contained no details whatsoever about secret equipment.  The government's true motivation in asserting the state secrets privilege was to cover up its own negligence.
Of course, we didn't find that out until fifty years later.  When the government engages in objectionable and secretive behavior we only find out haphazardly.  There is no mechanism that allows this stuff to make its way to the public domain.  For the instances we are fortunate enough to discover, taking national security claims at face value has not been a good bet.  For instance, even the judicial review in Reynolds was crucially dependent not on evidence but on earnest assurances from the executive branch (emph. added):
In the majority opinion, the court, having not seen the documents in question, relied on the Air Force affidavit to conclude that certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.
The SSP has remained a popular way for presidents - previous and current included - to cloak dubious activities in secrecy.  Given that decades-long pattern (and the aggressive post-9/11 buildout of the surveillance state), it requires a pretty ahistoircal outlook to swallow whole the charge that James Rosen is "an aider, abettor and/or co-conspirator."  We should expect more than government-furnished email excerpts, at least.

Those who defend the status quo deserve similar scrutiny.  For instance, BooMan's claim that "[t]he report relied on sources in the North Korean government" is sloppy.  The story cites "sources inside North Korea," not inside its government.  I haven't seen any reporting that the source was an actual government official, but those who are defending the JD's actions (BooMan and see also the Mediaite story) have made that claim.  Maybe that is a trivial distinction, but maybe it is something the JD is willing to have people infer.

The problem with all this cloak and dagger stuff is that ordinary citizens cannot reliably inform themselves on the issue.  The quick way to choose whom to believe is to pick the side you like better.  But after that first snap decision, it helps to look at the various parties' credibility.  This may be where Libby and I part company, because I have become so distrustful of government snooping and deception that I no longer believe its national security claims without some sort of independent corroboration.  She still seems willing to.  Maybe that makes me cynical or her gullible; who knows.

What I do know is that we are now in the twelfth year of a war that we are told encompasses the entire globe and that by definition will never end.  And war corrupts democracy:  It prevents citizens from becoming educated on one of the most important issues a nation can engage in.  It turns political opponents into traitors and adversarial reporting into treason.  Those who push back on a wartime president are endangering (our) national security.  Those who question the wisdom of our policies are giving aid and comfort to the enemy.  War does not, to put it mildly, promote a culture of free and open inquiry in the country that wages it.  In an environment like that, I'll err on the side of skepticism.

UPDATE:  Libby responds here.

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Comment Preferences

  •  Reading the warrant affidavit, seems to me that (5+ / 0-)

    in the Rosen case, he was an active part of soliciting classified information. If a foreign national was behaving as Rosen was (as testified to by the FBI) they'd certainly be viewed as a spy.

    •  Rosen is the poster child for bad journalistic (5+ / 0-)

      practices. Going into and out of the State Dept. within minutes of his source? Using State Dept. telephones to talk to his source, and emails? Outing foreign agents unnecessarily? This is no story about a whistleblower. This is a story of people who leaked (or published) damaging and secret information for their own selfish ends.

  •  The first amendment protects "press" (0+ / 0-)

    it says nothing about "journalism."

    What are you doing to fight the dangerous and counterproductive error of treating dirtbag terrorist criminals as though they were comic book supervillains? I can't believe we still have to argue this shit, let alone on Daily Kos.

    by happymisanthropy on Sat May 25, 2013 at 09:05:23 AM PDT

    •  The First Amendment doesn't (1+ / 0-)
      Recommended by:

      specifically protect newsgathering, either.
         Here's the real  deal: The mainstream media are asserting an immunity that they do not, under the law, possess.
         There is no reporter's shield law that protects what the AP and Rosen were doing, and there is at least one law under which they could be prosecuted for espionage.
          Therefore, there is no violation of the First Amendment by the administration.
          What there is is a political question: Should reporters be protected from surveillance and from contempt of court cases when they refuse to name their sources?
          The Congress has specifically refused to grant that immunity up to now, and the Obama administration has sabotaged the shield bill that has been considered in Congress.
         The details on the shield bill here:
         But it's important to realize that the DOJ's subpoenas of AP phone records was legal under existing law, as was the surveillance of Rosen.

  •  The role of the press is not what Rosen thinks (3+ / 0-)

    he thinks he should be able to "affect policy" but that is only a byproduct of reporting facts

    he was undermining the President

  •  There is no war (1+ / 0-)
    Recommended by:

    Where is the enemy army? Where are the enemy tanks, the artillery, the infantry? Where is the enemy navy? Where are the enemy's aircraft carriers, cruisers, destroyers, submarines? And the air force? Where are the fighters, the bombers, the missile silos?

    Where is the industrial colossus churning out war material, and the trucks, trains, and ships delivering it to the front lines? How many ships, planes, tanks, have we lost to enemy action?

    None of these things exist. This "war" is a lie created by people who want us to live in fear so we can be more easily controlled. It justifies the suspension of liberties, the expansion of offcial intrusion into our lives, and the buildup of a massive "homeland security" apparatus. In war no action is too extreme, no response too excessive; locking down a major city and pouring thousands of heavily armed police into the streets is entirely appropriate, even if the threat is just one unarmed wounded man hding in a boat in someone's back yard.

    This is not war; this is bullshit. It's time for us to wake up and call our deceivers to account.

  •  I don't think so (0+ / 0-)

    I disagree with at least two points:

    I think there are often clear indications when something is whistleblowing as it involves exposing corruption, illegalities or gross deceit.  Pentagon Papers was exactly that and it was done in the public interest.  There is no indication at all of Rosen exposing wrongdoing by senior government officials though.  If anything Rosen is stepping out of bounds as a journalist and attempting to make news because he disagrees with policy.  

    Also Elling's leak of the Pentagon Papers was targetted and limited in scope - far from indiscriminate.  It was a lot of pages, but it was one document and the whole document was leaked to make sure the pervasive and extensive lies of multiple senior government folks was exposed.  Booman would consider Elling as a whistleblower.

    I stopped reading the diary after the bit about Elling.

    Booman has this right - at least within the scope of the incidents he has been discussing.  Motivations, intent, scope and the actual stakes of the situation matter.  The leak has to be of value and any damage due to the leak has to be worth it.

    I'm not liberal. I'm actually just anti-evil, OK? - Elon James White

    by Satya1 on Sat May 25, 2013 at 03:57:55 PM PDT

  •  Your writing is thought provoking. I come to this (1+ / 0-)
    Recommended by:

    topic opinionated. I earned a degree in Journalism at NYU long ago when standards were different than they are today.  

    Substantiation, attribution and objectivity were essential for legitimacy or a compelling reason for doing without them was necessary.  A writer was never the story.  The story was the story.  A writer risked his reputation if he placed himself in the story, initiating events or influencing them.  The conventional wisdom in college was to remain an invisible monk.  Of course we knew that wasn't the way to topple a president but it was still a standard.  

    The leaker-publisher pair of Ellsberg and the New York Times/Washington Post looks a lot like the pair of Manning and Wikileaks to me.  The leaker's conscience drove the disclosure. With Ellsberg, I know of no single journalist at the NY Times who stands out in the publishing of the material and the Times was straightforward.  With Manning, I don't count Assonge as a journalist and I have no criticism.  To me, these look like clean transactions that delivered sensitive information that the public wouldn't have otherwise had.  What was disclosed was mainly of interest to a domestic audience and doesn't seem to be a threat.

    The leaker-publisher pair of Rosen and Kim doesn't seem like it would have been possible in Ellsberg's era. In the search warrant affadavit for Rosen's email and in the Stephen Kim defense fund website, Kim comes off as a socially inept and naive victim, suffering through the indignity of having to be booked in three different locations, without ever having done anything wrong because he doesn't really understand what unauthorized disclosure of national defense information means.  He's a nuclear weapons expert who went back to his old job at Lawrence Livermore National Laboratories when he left State, but there is no hint of the decisiveness or conscience that drove Ellsberg and Manning. The warrant mentions that he thought his association with Rosen might be able to help him get a job at a think tank.

    Rosen doesn't conform to the standards of another era. Courting Kim for information, playing at spies, a little bit predatory, and a comment about forcing the adminstration's hand on foreign policy, is more consistent with an amateur blogger than a reporter for one of the major outlets. He got his story, it wasn't censored, and so far he isn't being charged.  What else does he want?  Open access to the mainframe at the State Dept?

    I don't see that there was a compelling need for the disclosed information to be published either.  I've read that it was in the public's interest.  The public in South Korea, China, and Japan.  I have to wonder if that's outside the scope of what a US reporter needs to consider. The information would probably be shared at the proper level through the State Dept with counterparts in other countries.  

    I can understand what people do for the sake of their own self interest and sometimes choices backfire.

    There is no existence without doubt.

    by Mark Lippman on Sun May 26, 2013 at 12:04:16 AM PDT

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