James Goodale defended the New York Times during the Pentagon Papers. But Nixon had nothing on Obama, writes the First Amendment lawyer—and that’s bad news for freedom of the press.
Under
the guidelines, subpoenas concerning the press cannot be issued without
the express approval of the Attorney General. Further, before a
subpoena is issued, the government is honor bound to negotiate with the
party to which it is directed.
While
Attorney General Eric H. Holder, Jr. may have approved the subpoena, he
apparently never told AP about it. In the meantime, the Justice
Department for two months has had all the details of AP’s newsgathering.
AP could bring a lawsuit to declare its First Amendment rights have
been violated and seek a return of its records. Gary Pruitt, President
of AP, has already made a demand for them.
While
this legal action by AP is possible, the government has picked the one
federal jurisdiction most favorable to it for obtaining the source of
leaks, namely, the federal court in the District of Columbia. Its
subpoenas were directed to telephone companies located in D.C.
It
was the D.C. Federal Appeals Court that upheld a subpoena for Judy
Miller’s sources in 2005 in connection with the Scooter Libby trial.
That court ruled that a privilege for reporters not to disclose sources
of information did not protect her in the District of Columbia. She
resisted and went to jail.
As
a consequence of that case, the House of Representatives passed a
Federal Shield Law bill on Oct. 16, 2007, by voting 398 to 21. As
Senator, Obama supported this bill. As president, however, he
effectively deep-sixed it.
Had
the bill passed by the House become law, it would have protected AP in
this instance. Obama effectively killed this bill because as president
he decided the bill needed “a national security exception.” This is to
say, reporters would have to disclose sources if national security
required it.
Since
the bill was intended in part to protect reporters when they had
national security leaks (such as AP in this instance) the “national
security exception” would have swallowed up the bill, and consequently
the bill died in the Senate.
The
action against AP comes as no surprise because it is safe to say Obama
is paranoid about stopping leaks. He has indicted six leakers, more than
any other president in history. The previous record was three, and that
encompasses the entire history of the country. But there surely is more
to come.
Obama has indicted six leakers, more than any other president in history.
First, Obama has been pursuing James Risen, a New York Times reporter, for the source of a leak he received about Iran’s nuclear program. Risen published this leak in his book, “The State of War: the Secret History of the C.I.A.” When Obama’s Justice Department sought the source of the leak, Risen refused to give it. He won his case in the Federal District Court in Virginia in 2011. The government appealed, and that appeal has been sitting undecided for 17 months.
Should
Risen lose his case on appeal, which is entirely likely, most observers
believe he will refuse to testify and go to jail, as did Judy Miller.
Obama will then be faced with another controversy of a similar magnitude
to that he faces today.
Secondly,
early next month, the trial of Pfc Bradley Manning is scheduled to
begin. Manning leaked information to Julian Assange, the founder of the
website WikiLeaks. Assange published the leaks, as did the Guardian, the
New York Times, der Speigel, El Pais, and Le Monde.
Manning’s
trial may well be the most significant “leak” trial ever. The
government purportedly will produce as many as 100 witnesses or more to
prove Manning, and inferentially the New York Times and the other
papers, damaged national security under the Espionage Act, and aided the
enemy.
This
will be the first such trial that uses the Aiding the Enemy Act to
prosecute a leaker. Many First Amendment observers believe that the
Aiding the Enemy Act is so broad as applied to Manning that it violates
the First Amendment. If the government succeeds in convicting Manning
under this Act, an appeal raising First Amendment issues is almost
guaranteed.
Lastly,
Obama continues to pursue Julian Assange. He is holed up in the
Ecuadorean Embassy because his lawyers believe he will be extradited to
the United States where he will face prosecution for conspiring with
Manning to violate the Espionage Act.
Assange
is sought in Sweden for sexual practices allegedly violating Swedish
law. Manning’s lawyers believe if Assange is extradited to Sweden, he
will immediately be extradited to the U.S.
In
December 2010 the government convened a grand jury to indict Assange.
Since this grand jury has not been heard from in recent months, the
public may think the grand jury has disbanded.
Assange’s
lawyers believe, however, that the grand jury has already secretly
indicted Assange. This would account for the silence of the grand jury,
since, if it has in fact indicted Assange secretly, government lawyers
are bound by the rules of secrecy not to disclose it.
This
grand jury is proceeding under a theory that is extremely dangerous to
freedom of the press. It is trying to prove Assange “conspired” with
Manning to violate the Espionage Act. This would only require that
Manning agreed with Assange to leak information. This would be far
easier to prove than trying to prove Assange, in fact, violated the
Espionage Act.
It
would also put in jeopardy the gathering of national security
information by any reporter and so criminalize the newsgathering
process. For this reason, in 2011, the Committee to Protect Journalists
wrote to President Obama not to go forward with the prosecution of
Assange. It pointed out that every reporter and publisher would be
subject to such prosecution merely for attempting to gather the news
from those with access to classified information.
Following
the publication of the Pentagon Papers, President Richard Nixon tried
to use the same theory to indict the New York Times and Neil Sheehan,
the reporter to whom Daniel Ellsberg leaked the Pentagon Papers. The
grand jury met for 17 months and faced furious opposition by reporters,
academics, and others whom the government suspected of having access to
the Pentagon Papers before they were published. In the end, Nixon gave
up on this prosecution.
Many
in the journalistic community -- in addition to the Committee to
Protect Journalists -- hope Obama will also give up on the prosecution
of Assange. Obama’s record on national security press matters is bad
enough without being remembered for succeeding where Nixon failed.
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