Posts tagged with ‘leaks’

The government’s case, in short, was that disclosure of classified information by a soldier who explicitly aims to inform the whole world, to an agency that explicitly aims to inform the whole world, in a medium that is accessed by the whole world, amounts to aiding the enemy, a crime punishable by death. I can think of many countries that would enthusiastically enforce such a policy. Let’s not be one of them.
On its side, the Obama Administration has the courts, the intelligence services, Congress, the diplomatic service, much of the media, and most of the American public. Snowden’s got Greenwald, a woman from Wikileaks, and a dodgy travel document from Ecuador. Which side are you on?

— John Cassidy, The New Yorker. Demonizing Edward Snowden: Which Side Are You On?

How did The Guardian become the leaker's outlet of choice? →

Via the New Republic:

Though the Washington Post published one scoop based on [Edward] Snowden’s leak, it is the Guardian, through its new digital only U.S. website, that has provided a structured timeline of exposés and promises more. This is getting to be something of a habit. Three years ago, along with the New York Times, the Guardian was also the main news agency to systematically publish (and redact) excerpts from over 250,000 classified State Department cables. Though Julian Assange’s Wikileaks had been trickling out stories from February 2010, the real impact of the disclosures came with the publication of edited and contextualised material in the mainstream press. In its 2011 annual report, Amnesty International specifically cited the paper’s coverage as a catalyst for a series of risings against repressive regimes, with revelations about the corruption of Tunisian President Zine El Abidine Ben Ali, leading to his overthrow. Foreign Policy magazine concluded that the ‘Wikileaks Revolution’ was a catalyst for the Arab Spring.

How did the Guardian—a formerly Manchester-based, 192-year-old left-of-center paper with a print readership of less than 200,000 a day—manage to insert itself into 2013’s biggest news story? In many ways, it’s a classic example of a news organization wringing new scoops out of readers who were impressed by previous ones — in this case on both ideological and operational grounds. According to Snowden, his choice of publisher was determined by the Guardian’s track record in handling both vulnerable intelligence and whistleblowers. “Harming people isn’t my goal,” he told the Guardian. ”Transparency is.”

The Wikileaks publication worked similarly. For transparency’s sake, it’s worth remembering that it wasn’t Assange who orchestrated the release of the cables, but rather an American-born freelance investigative journalist, Heather Brooke, who acquired encrypted data and passwords from another activist and took them to the Guardian. Why the Guardian?They had a track record in dealing with stories concerned with national security and power,” she told me: “And a proper understanding of how to protect sources.

FJP: Important to note, as the New Republic does, is that despite its US operations, The Guardian operates more or less as an outsider among the Washington press corp. This allows it to go after adversarial stories without worrying about the inevitable “exclusion from briefings, refusal[s] to confirm or deny stories, or provide interviews from senior politicians and staff.”

To Strongbox or Not to Strongbox

Last week we noted that the New Yorker launched Strongbox, an online system meant to preserve the anonymity of leakers submitting sensitive material to the magazine.

Strongbox is based on the work of Aaron Swartz and Kevin Poulsen and, as Amy Davidson noted when announcing its implementation, “Even we won’t be able to figure out where files sent to us come from. If anyone asks us, we won’t be able to tell them.”

Which is a good thing given recent news about the Justice Department’s surveilling of journalists and news organizations.

But can it be be a newsroom boon?

Writing at CSO Online, John P. Mello argues that while Strongbox “provides strong protection of the identity of a source, it removes an important element in the process: authentication.”

Here’s what he means:

A system where anonymous leakers are dropping documents into a folder has advantages when government investigators start probing a story’s sources, but it also creates tremendous disadvantages. “The government can’t come after you to find out who gave you the document because you have no way of knowing,” [Northeastern University assistant journalism professor Dan] Kennedy said.

"That gives more protection to the source, but it makes it harder to vet the document because you don’t know who gave it to you," he said…

…”All sources, anonymous or not, have to be evaluated. That’s impossible to do without context. “Knowing your source’s motivations helps contextualize the information,” said Mark Jurkowitz, associate director for the Pew Research Project for Excellence in Journalism.

"A solution that prevents the news organization from knowing the identity of a confidential source has value, but it’s not an ideal solution because it is important to know the identity of the source to weigh the information," he told CSO.

"Information supplied by a confidential source needs to be evaluated, weighed and understood in the same way that information of somebody speaking on the record does," he added.

FJP: A tool is a tool. While Mello illustrates important drawbacks, if the alternative is no documents to work with then you work with the tools available. It’s just important to know going in what their limitations are.

Images: Independent Twitter posts via Nicholas Thomson and Kevin Anderson.

Just Write What the Government Tells You
The News: The Justice Department tracked Fox News’ correspondent James Rosen in an attempt to tie leaks on North Korea to a government advisor.
Via Glenn Greenwald:

If even the most protected journalists - those who work for the largest media outlets - are being targeted [for leaks by the Justice Department], and are saying over and over that the Obama DOJ is preventing basic news gathering from taking place without fear, imagine the effect this all has on independent journalists who are much more vulnerable.

Image: Twitter post from Karen Tumulty

Just Write What the Government Tells You

The News: The Justice Department tracked Fox News’ correspondent James Rosen in an attempt to tie leaks on North Korea to a government advisor.

Via Glenn Greenwald:

If even the most protected journalists - those who work for the largest media outlets - are being targeted [for leaks by the Justice Department], and are saying over and over that the Obama DOJ is preventing basic news gathering from taking place without fear, imagine the effect this all has on independent journalists who are much more vulnerable.

Image: Twitter post from Karen Tumulty

Groundhog's Day: DOJ Tracks Fox Reporter's Phone Records →

Last week’s news was that the Justice Department seized two months of Associated Press phone records.

This week’s begins with a report that the DOJ surveilled Fox News’ chief Washington correspondent James Rosen, tracking his visits to the State Department in an apparent attempt to link a 2009 leak of classified information about North Korea to government adviser Stephen Jin-Woo Kim

Via the Washington Post:

When the Justice Department began investigating possible leaks of classified information about North Korea in 2009, investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.

They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails.

The case of Stephen Jin-Woo Kim, the government adviser, and James Rosen, the chief Washington correspondent for Fox News, bears striking similarities to a sweeping leaks investigation disclosed last week in which federal investigators obtained records over two months of more than 20 telephone lines assigned to the Associated Press…

…Court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist — and raise the question of how often journalists have been investigated as closely as Rosen was in 2010. The case also raises new concerns among critics of government secrecy about the possible stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.

Washington Post, A rare peek into a Justice Department leak probe.

Leaks, The Justice Department and the Associated Press
Attorney General Eric Holder responded yesterday to the news that the Justice Department seized two months of Associated Press phone records. Security!

This was a very serious leak and a very, very serious leak. I’ve been a prosecutor since 1976 and I have to say that this is among, if not the most serious, it is within the top two or three most serious leaks I’ve ever seen. It put the American people at risk. That’s not hyperbole. It put the American people at risk.

Leaks! The government doesn’t like them. And Holder’s Justice Department has prosecuted more alleged leakers under the World War 1-era Espionage Act than all his predecessors combined.
In this case, the alleged leak lead to the AP reporting on a Yemeni-based plot to blow up an airplane.
Here’s some of what we’re reading on the story.
Glenn Greenwald, The Guardian: Justice Department’s pursuit of AP’s phone records is both extreme and dangerous.

The legality of the DOJ’s actions is impossible to assess because it is not even known what legal authority it claims nor the legal process it invoked to obtain these records. Particularly in the post-9/11 era, the DOJ’s power to obtain phone records is, as I’ve detailed many times, dangerously broad. It often has the power to obtain those records without the person’s knowledge (as happened here) and for a wildly broad scope of time (as also happened here). There are numerous instruments that have been vested in the DOJ to obtain phone records, many of which do not require court approval, including administrative subpoenas and “national security letters” (issued without judicial review); indeed, the Obama DOJ has previously claimed it has the power to obtain journalists’ phone records without subpoeans using NSLs, and in its relentless pursuit to learn the identity of the source for one of New York Times’ James Risen’s stories, the Obama DOJ has actually claimed that journalists have no shield protections whatsoever in the national security context. It’s also quite possible that they obtained the records through a Grand Jury subpoena, as part of yet another criminal investigation to uncover and punish leakers.
None of those processes for obtaining these invasive records requires a demonstration of probable cause or anything close to it. Instead, the DOJ must simply assert that the records “relate to” a pending investigation: a standard so broad that virtually every DOJ desire will fulfill it.

Emily Bazelon, Slate: Obama’s War on Journalists:

Whether a leak threatens national security is clearly not the standard Holder and his department are using. And the problem is that the standard is up to them. The 1917 Espionage Act, the basis for most of these cases, was written to go after people who compromised military operations. Back in 1973, the major law review article on that statute concluded that Congress never intended to go after journalists with it, or even their sources. Since then, legal scholars have proposed various ways of narrowing the Espionage Act—University of Chicago law professor Geoffrey Stone wants to limit the law’s reach to cases in which there’s proof that a reporter knows publication will wreck national security without contributing to the public debate. But Congress has done nothing of the sort. Wouldn’t it be nice if the Republicans who are indignant over the AP investigation got serious about reform? Somehow, I doubt it. Instead, with a Democratic White House leading the charge, it’s hard to see who will stop this train.

Timothy Lee, Washington Post: In AP surveillance case, the real scandal is what’s legal

But here’s what’s really scary: The Justice Department’s actions are likely perfectly legal.
U.S. law allows the government to engage in this type of surveillance—on media organizations or anyone else—without meaningful judicial oversight.
The key here is a legal principle known as the “third party doctrine,” which says that users don’t have Fourth Amendment rights protecting information they voluntarily turn over to someone else. Courts have said that when you dial a phone number, you are voluntarily providing information to your phone company, which is then free to share it with the government.

Brian Fung, National Journal: What the AP Subpoena Scandal Means for Your Electronic Privacy.

It’s not just journalists and their sources who stand to suffer from an erosion of the legal barriers between government and businesses. Here’s a short list of your personal information companies can hand over to the feds without repercussion, and on little more than a subpoena: geolocation data, the PCs you’ve accessed, emails you’ve sent and text messages and content you’ve placed on cloud services like Dropbox.

Image: Boiling Water, by Tom Tomorrow, March 2011. Since this cartoon, the government has prosecuted a sixth alleged leaker under the Espionage Act. Select to embiggen.

Leaks, The Justice Department and the Associated Press

Attorney General Eric Holder responded yesterday to the news that the Justice Department seized two months of Associated Press phone records. Security!

This was a very serious leak and a very, very serious leak. I’ve been a prosecutor since 1976 and I have to say that this is among, if not the most serious, it is within the top two or three most serious leaks I’ve ever seen. It put the American people at risk. That’s not hyperbole. It put the American people at risk.

Leaks! The government doesn’t like them. And Holder’s Justice Department has prosecuted more alleged leakers under the World War 1-era Espionage Act than all his predecessors combined.

In this case, the alleged leak lead to the AP reporting on a Yemeni-based plot to blow up an airplane.

Here’s some of what we’re reading on the story.

Glenn Greenwald, The Guardian: Justice Department’s pursuit of AP’s phone records is both extreme and dangerous.

The legality of the DOJ’s actions is impossible to assess because it is not even known what legal authority it claims nor the legal process it invoked to obtain these records. Particularly in the post-9/11 era, the DOJ’s power to obtain phone records is, as I’ve detailed many times, dangerously broad. It often has the power to obtain those records without the person’s knowledge (as happened here) and for a wildly broad scope of time (as also happened here). There are numerous instruments that have been vested in the DOJ to obtain phone records, many of which do not require court approval, including administrative subpoenas and “national security letters” (issued without judicial review); indeed, the Obama DOJ has previously claimed it has the power to obtain journalists’ phone records without subpoeans using NSLs, and in its relentless pursuit to learn the identity of the source for one of New York Times’ James Risen’s stories, the Obama DOJ has actually claimed that journalists have no shield protections whatsoever in the national security context. It’s also quite possible that they obtained the records through a Grand Jury subpoena, as part of yet another criminal investigation to uncover and punish leakers.

None of those processes for obtaining these invasive records requires a demonstration of probable cause or anything close to it. Instead, the DOJ must simply assert that the records “relate to” a pending investigation: a standard so broad that virtually every DOJ desire will fulfill it.

Emily Bazelon, Slate: Obama’s War on Journalists:

Whether a leak threatens national security is clearly not the standard Holder and his department are using. And the problem is that the standard is up to them. The 1917 Espionage Act, the basis for most of these cases, was written to go after people who compromised military operations. Back in 1973, the major law review article on that statute concluded that Congress never intended to go after journalists with it, or even their sources. Since then, legal scholars have proposed various ways of narrowing the Espionage Act—University of Chicago law professor Geoffrey Stone wants to limit the law’s reach to cases in which there’s proof that a reporter knows publication will wreck national security without contributing to the public debate. But Congress has done nothing of the sort. Wouldn’t it be nice if the Republicans who are indignant over the AP investigation got serious about reform? Somehow, I doubt it. Instead, with a Democratic White House leading the charge, it’s hard to see who will stop this train.

Timothy Lee, Washington Post: In AP surveillance case, the real scandal is what’s legal

But here’s what’s really scary: The Justice Department’s actions are likely perfectly legal.

U.S. law allows the government to engage in this type of surveillance—on media organizations or anyone else—without meaningful judicial oversight.

The key here is a legal principle known as the “third party doctrine,” which says that users don’t have Fourth Amendment rights protecting information they voluntarily turn over to someone else. Courts have said that when you dial a phone number, you are voluntarily providing information to your phone company, which is then free to share it with the government.

Brian Fung, National Journal: What the AP Subpoena Scandal Means for Your Electronic Privacy.

It’s not just journalists and their sources who stand to suffer from an erosion of the legal barriers between government and businesses. Here’s a short list of your personal information companies can hand over to the feds without repercussion, and on little more than a subpoena: geolocation data, the PCs you’ve accessed, emails you’ve sent and text messages and content you’ve placed on cloud services like Dropbox.

ImageBoiling Water, by Tom Tomorrow, March 2011. Since this cartoon, the government has prosecuted a sixth alleged leaker under the Espionage Act. Select to embiggen.

Leaked Audio of Bradley Manning Statement Released by Freedom of the Press Foundation →

Via the Foundation:

Today, Freedom of the Press Foundation is publishing the full, previously unreleased audio recording of Private First Class Bradley Manning’s speech to the military court in Ft. Meade about his motivations for leaking over 700,000 government documents to WikiLeaks. In addition, we have published highlights from Manning’s statement to the court.

While unofficial transcripts of this statement are available, this marks the first time the American public has heard the actual voice of Manning.

He explains to the military court in his own cadence and words how and why he gave the Apache helicopter video, Afghanistan and Iraq Wars Logs, and the State Department Diplomatic Cables to WikiLeaks. Manning explains his motives, noting how he believed the documents showed deep wrongdoing by the government and how he hoped that the release would “spark a domestic debate on the role of the military and our foreign policy in general as it related to Iraq and Afghanistan.” In conjunction with the statement, Private First Class Manning also pleaded guilty to 10 of the 22 charges against him.

A World Without Leaks →

Via Margaret Sullivan, Public Editor, New York Times.

Imagine if American citizens never learned about the abuse of prisoners at Abu Ghraib. Imagine not knowing about the brutal treatment of terror suspects at United States government “black sites.” Or about the drone program that is expanding under President Obama, or the Bush administration’s warrantless wiretapping of Americans.

This is a world without leaks.

And a world without leaks — the secret government information slipped to the press — may be the direction we’re headed in. Since 9/11, leakers and whistle-blowers have become an increasingly endangered species. Some, like the former C.I.A. official John Kiriakou, have gone to jail. Another, Pfc. Bradley Manning, is charged with “aiding the enemy” for the masses of classified information he gave to Julian Assange’s WikiLeaks. He could face life in prison…

Declan Walsh, a reporter who wrote many WikiLeaks-based stories for The Guardian before coming to The Times, calls leaks “the unfiltered lifeblood of investigative journalism.” He wrote in an e-mail from his post in Pakistan: “They may come from difficult, even compromised sources, be ridden with impurities and require careful handling to produce an accurate story. None of that reduces their importance to journalism.”…

…Whatever one’s view, one fact is clear: Leakers are being prosecuted and punished like never before. Consider that the federal Espionage Act, passed in 1917, was used only three times in its first 92 years to prosecute government officials for press leaks. But the Obama administration, in the president’s first term alone, used it six times to go after leakers. Now some of them have gone to jail.

The crackdown sends a loud message. Scott Shane, who covers national security for The Times, says that message is being heard — and heeded.

There’s definitely a chilling effect,” he told me. “Government officials who might otherwise discuss sensitive topics will refer to these cases in rebuffing a request for background information.”

Margaret Sullivan, New York Times. The Danger of Suppressing Leaks

How the Bradley Manning Case Endangers Journalism →

Harvard Law professor Yochai Benkler begins a recent New Republic article like so:

After 1,000 days in pretrial detention, Private Bradley Manning yesterday offered a modified guilty plea for passing classified materials to WikiLeaks. But his case is far from over—not for Manning, and not for the rest of the country. To understand what is still at stake, consider an exchange that took place in a military courtroom in Maryland in January.

The judge, Col. Denise Lind, asked the prosecutors a brief but revealing question: Would you have pressed the same charges if Manning had given the documents not to WikiLeaks but directly to the New York Times?

The prosecutor’s answer was simple: “Yes Ma’am.”

This last line, the simple, “Yes, Ma’am,” is important.

It’s not that Manning leaked to WikiLeaks the government is saying. It’s that he leaked at all. More specifically, in the government’s view, the act of leaking is “aiding the enemy,” and it is those charges — a capital offense, although the prosecution says they will not seek the death penalty — that it looks like they are going to pursue.

As GigaOm’s Matthew Ingram points out:

[I]f Manning is found guilty of “aiding the enemy” for releasing classified documents to WikiLeaks, it could change the nature of both journalism and free speech forever.

Why? Because as Benkler points out, the charge for which Manning is being court-martialed could just as easily be applied to someone who leaks similar documents to virtually any media outlet, including the New York Times or the Washington Post. In other words, if the U.S. government has seen fit to go after Manning and WikiLeaks, what is to stop them from pursuing anyone who leaks documents, and any media entity that publishes them?

And, as Benkler, who’s an expert witness on the case, further explains:

[T]hat “Yes Ma’am” does something else: It makes the Manning prosecution a clear and present danger to journalism in the national security arena. The guilty plea Manning offered could subject him to twenty years in prison—more than enough to deter future whistleblowers. But the prosecutors seem bent on using this case to push a novel and aggressive interpretation of the law that would arm the government with a much bigger stick to prosecute vaguely-defined national security leaks, a big stick that could threaten not just members of the military, but civilians too…

…The prosecution case seems designed, quite simply, to terrorize future national security whistleblowers. The charges against Manning are different from those that have been brought against other whistleblowers. “Aiding the enemy” is punishable by death. And although the prosecutors in this case are not seeking the death penalty against Manning, the precedent they are seeking to establish does not depend on the penalty. It establishes the act as a capital offense, regardless of whether prosecutors in their discretion decide to seek the death penalty in any particular case.

Chilling, indeed. As Ingram sums up:

Benkler’s warning shouldn’t be taken lightly: if Manning is guilty of aiding the enemy for simply leaking documents, then anyone who communicates with a newspaper could be guilty of something similar. And if the leaker is guilty, then the publisher could be as well — and that could cause a chilling effect on the media that would change the nature of public journalism forever.

Yochai Benkler, The New Republic. The Dangerous Logic of the Bradley Manning Case.

Mathew Ingram, paidContent. If Bradley Manning and WikiLeaks are guilty, then so is the New York Times.

Government Targets Wired for a Five-year-Old Article That Leaks Info on Weapons System That Doesn't Exist →

Via Wired:

In its mounting campaign against leakers, the U.S. government isn’t just going after officials who revealed weighty secrets like the White House’s drone strike “kill list” or its plan to sabotage Iran’s nuclear sites. Federal agents are also chasing a leaker who gave [Wired’s] Danger Room a document asking for a futuristic laser weapon that could set insurgents’ clothes on fire from nine miles away.

It’s an odd investigation, because the energy weapon doesn’t exist; the unclassified document describing it reads almost like a spoof of the laser system out of Real Genius; and this is 2012 — nearly five years after the leak in question.

But that hasn’t stopped the Naval Criminal Investigative Service from contacting Danger Room and its attorneys several times over six months regarding an investigation into the document, which describes a “Precision Airborne Standoff Directed Energy Weapon” and is marked ”For Official Use Only,” or FOUO.

“This investigation is currently being conducted as a counterintelligence matter to determine if a loss/compromise of classified information occurred,” e-mailed Special Agent Christopher Capps, who works for the Naval Criminal Investigative Service’s field office in Washington, D.C.

Capps also asked Danger Room to divulge the source who provided the imaginary weapon document.

FJP: Looking for more background on the war against leaks? Check our Leaks Tag.

Wired, NCIS Targets Danger Room in Silliest Leak Investigation Ever.

Judith Miller: Ironist

Last night Jon Stewart took on the current campaign against government leaks by looking at a statement that Judith Miller, former New York Times reporter and current Fox News contributor, made over the weekend.

To wit: “These leaks, especially the kind of leaks that are being investigated now by not one but two special prosecutors, they are truly injurious to the national security… they make it harder to make foreign policy.”

Miller, of course, is famous for leaks. Her reports leading up to and immediately after the start of the Iraq War were filled with leaks from anonymous government sources about Iraq’s ongoing Weapons of Mass Destruction programs, and the existence of WMD in Iraq itself. Needless to say, these weren’t quite leaks, they were government plants that got front page play despite being entirely incorrect.

In a 2004 Editors Note, the Times outlined its erroneous reporting in the run-up to the war and while they don’t mention Miller by name, the majority of the articles they point to are hers.

Fast forward and Miller again used leaks when she outed Valerie Plame as a CIA agent when Plame’s husband became an increasingly vocal critic of the Bush administration.

In an astonishing 2005 look in the mirror, the New York Times ran a 6,000 plus word article examining Miller’s role in the Plame case, as well as her reporting on WMD in Iraq.

While not directly calling Miller a Bush administration shill, they noted that others did: “Critics said The Times was protecting not a whistle-blower but an administration campaign intended to squelch dissent.”

Ms. Miller had written a string of articles before the war - often based on the accounts of Bush administration officials and Iraqi defectors - strongly suggesting that Saddam Hussein was developing these weapons of mass destruction.

When no evidence of them was found, her reporting, along with that of some other journalists, came under fire. She was accused of writing articles that helped the Bush administration make its case for war.

"I told her there was unease, discomfort, unhappiness over some of the coverage," said Roger Cohen, who was the foreign editor at the time. "There was concern that she’d been convinced in an unwarranted way, a way that was not holding up, of the possible existence of W.M.D."

Writing a few days later, the Times’ Maureen Dowd had this to say:

Judy’s stories about W.M.D. fit too perfectly with the White House’s case for war. She was close to Ahmad Chalabi, the con man who was conning the neocons to knock out Saddam so he could get his hands on Iraq, and I worried that she was playing a leading role in the dangerous echo chamber that Senator Bob Graham, now retired, dubbed “incestuous amplification.” Using Iraqi defectors and exiles, Mr. Chalabi planted bogus stories with Judy and other credulous journalists…

…Judy admitted in the story that she “got it totally wrong” about W.M.D. “If your sources are wrong,” she said, “you are wrong.” But investigative reporting is not stenography.

This stenography bit is important. Yesterday we noted Bill Keller’s take on the current hyperventilating over leaks. While looking back at the Times’ Iraq WMD reporting, he writes:

But this is a good time to look a little harder at the journalists who got it right. How did they come up with the evidence to refute the version embraced by the president, by most officials in both parties and by a lot of the mainstream media?

They got it from government officials with access to classified information, who risked their jobs to confide the truth to journalists. Critics call these “leaks,” although such stories hardly ever spill out unbidden; they are painstakingly assembled by teasing out bits of information, triangulating, correcting, testing, confirming.

So yes, leaks can be “truly injurious” if you do them the Judith Miller way. Done right, as Keller explains, and they’re a “public service”.

Washington is currently going a little nuts on the subject of leaks. The Obama administration, which has, without really setting out to do so, already surpassed all previous administrations in its prosecution of leakers, has begun new investigations into disclosures by The Times, Newsweek, The Associated Press and others. Congress has mandated surveillance systems that make it easier to identify leakers and to prevent unauthorized downloads of classified material.

But that has not quieted the hysteria. Republicans are accusing the F.B.I. of insufficient zeal and demanding a special prosecutor. Democrats, typically worried about being perceived as soft on national security, have tried to out-deplore the Republicans. Senator Dianne Feinstein introduced a bill the other day that, among other things, would forbid background briefings on intelligence matters by anyone except an agency’s director, deputy director or public-affairs spin doctors - thus cutting out the officers with firsthand knowledge and silencing those who question the party line. It should be dubbed the Keep Americans in the Dark Act. Feinstein already seems to be backpedaling a bit, after discovering that top intelligence officials think elements of her bill are ridiculous…

…Over the decades, rival interests — the government’s legitimate responsibility to keep some things secret, the press’s constitutional freedom to ferret out information and report it — have coexisted through informal understandings. The government worked to protect secrets at the source but generally accepted that it had little recourse once they had escaped. Violators were reprimanded, but hardly ever charged under the Espionage Act. Reporters and editors were sometimes persuaded to withhold information if they were convinced it could put lives at risk.

Alexander Bickel, who was the chief counsel for The Times in the Pentagon Papers case, wrote that this accommodation “works well only when there is forbearance and continence on both sides. It threatens to break down when the adversaries turn into enemies, when they break diplomatic relations with each other, gird for and wage war. Such conditions threaten graver breakdowns yet, eroding the popular trust and confidence in both government and the press on which effective exercise of the function of both depends.”

Bickel’s argument, in a seminal book of legal philosophy called “The Morality of Consent,” assumes a respectful - if adversarial - relationship between, on one side, an establishment press and, on the other, a government that accepts the value of compromise in the conduct of public affairs. It’s arguable whether we have either of those today.

Bill Keller, New York Times. The Leak Police.

A must read from this weekend.

In it, Keller walks through some US journalism history. In particular, Max Frankel’s 1971 deposition defending the New York Times’ publication of the Pentagon Papers. At that time, Keller writes, “Frankel acknowledged the self-serving nature of [leaks] - on both sides - but concluded that this ‘cooperative, competitive, antagonistic and arcane relationship,’ as he called it, was essential to the working of democracy.”

Why the WikiLeaks Grand Jury is So Dangerous: Members of Congress Now Want to Prosecute New York Times Journalists Too →

Via the Electronic Frontier Foundation:

For more than a year now, EFF has encouraged mainstream press publications like the New York Times to aggressively defend WikiLeaks’ First Amendment right to publish classified information in the public interest and denounce the ongoing grand jury investigating WikiLeaks as a threat to press freedom.

Well, we are now seeing why that is so important: at a House Judiciary subcommittee hearing on July 11th, some members of Congress made it clear they also want New York Times journalists charged under the Espionage Act for their recent stories on President Obama’s ‘Kill List’ and secret US cyberattacks against Iran. During the hearing, House Republicans “pressed legal experts Wednesday on whether it was possible to prosecute reporters for publishing classified information,” according to the Los Angeles Times.

In addition, the Washingtonian’s Shane Harris reported a month ago that a “senior” Justice Department official “made it clear that reporters who talked to sources about classified information were putting themselves at risk of prosecution.”

Leaks big and small have been happening for decades—even centuries—and the most recent are comparable to several others. No journalist has ever been prosecuted under the Espionage Act and it has generally been accepted, even by Congress’s own research arm, that the publication of government secrets by the press is protected speech under the First Amendment. Yet the government is actively investigating WikiLeaks and now threatening others for just that.

The mainstream media may see little in common with Assange’s digital publication methods or his general demeanor, but what he is accused of is virtually indistinguishable from what other reporters and newspapers do every day: poke, prod, and cajole sources within the government to give up classified information that newspapers then publish to inform the public of the government’s activities.

FJP: All so true. Read on.