A Los Angeles Times editorial yesterday touted the benefits of focusing the "leak hysteria" in Washington on sources, who are often whistleblowers, rather than journalists.
But the public has been well served by a policy of focusing on leakers, not reporters. In its agitation over the latest leaks, Congress shouldn't disturb that balance.
The LA Times' position is a 180 degree flip flop from the stance the paper took just months after the indictment of National Security Agency (NSA) whistleblower Thomas Drake under the Espionage Act for alleged mishandling of classified information. Back in 2010, the LA Times commendably articulated what I have been warning about since the Drake indictment – that the war on whistleblowers is really a war on the media:
In fact, this administration has pursued a quiet but malicious campaign against the news media and their sources, more aggressively attacking those who ferret out confidential information than even the George W. Bush administration did. . . . It is understandable that the administration has secrets and wants to keep them. But this campaign to flush out sources has the feel of chest-thumping and intimidation. It is one thing to protect information that might put Americans in danger or undermine national security; it is another to bring cases against whistle-blowers and others who divulge information to spur debate and raise questions about public policy.
The case against Drake consisted of trumped up charges aimed at silencing a whistleblower, rather than protecting classified information, and, almost a year after the LA Times criticized the prosecution, the case against Drake collapsed in spectacular fashion days before trial.
However, now that a few extreme members of Congress are talking about subpoenaing journalists, the LA Times has completely changed its tune on the war on whistleblowers, and willfully ignores critical facts it acknowledged in 2010.
Yesterday's editorial refers to the six Espionage Act cases brought by the administration, but fails to mention that,
- the L.A. Times itself criticized the Drake case as an unacceptable stifling of legitimate dissent in 2010, and
- the case against Drake totally collapsed under the weight of the truth.
(Recently, the government released one of the allegedly classified documents that formed the basis of an Espionage Act charge against Drake, revealing an innocuous document so obviously unclassified that the former classification czar under G.W. Bush requested punishment for the officials who overclassified the information.)
Even more egregious, the LA Times draws a distinction between the G.W. Bush and Obama administrations, implying that the Obama administration has not pursued journalists as aggressively.
Although President George W. Bush flirted with the idea at one point, the act has not been used to target journalists for 70 years. . . .
A similar restraint has characterized the Justice Department's policy on reporters' sources. Under guidelines honored by administrations of both parties, "all reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media." Moreover, "no subpoena may be issued to any member of the news media or for the telephone toll records of any member of the news media without the express authorization of the attorney general."
Not only does this completely contradict the LA Times 2010 declaration that
. . . [the Obama] administration has pursued a quiet but malicious campaign against the news media and their sources, more aggressively attacking those who ferret out confidential information than even the George W. Bush administration did, . . .
but the LA Times omits the fact that the Obama administration has twice subpoenaed New York Times journalist James Risen in the Espionage Act case against former CIA officer Jeffery Sterling. The omission is more even more glaring considering that the LA Times specifically mentioned Risen in 2010:
James Risen of the New York Times has been ordered to testify about sources for his 2006 book, "State of War: The Secret History of the CIA and the Bush Administration." (Risen, a former Los Angeles Times reporter, is fighting that subpoena.)
Since 2010, the Obama administration has not let up on Risen, instead appealing to the Second Circuit Court of Appeals a lower court ruling limiting Risen's testimony, and arguing that there is no reporter's privilege in a criminal case despite the fact that legal precedent clearly dictates otherwise.
Yet, apparently feeling the threat to its own journalists, the LATimes ignores all of these facts in its shamelessly self-serving editorial Monday. It should not be news to a paper that opined about "the Obama administration's attacks on the media" almost two years ago: the war on journalists began with the indictment of Thomas Drake, and has continued unabated as the Obama administration continues to target journalists and their sources. The war on whistleblowers – which is really a war on the media – is no less dangerous to the First Amendment simply because a few Congresspeople now want in on the action.
Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.