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Not after reporters . . . just their sources

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From the Summer 2006 issue of The News Media & The Law, page 13.

Earlier this year — a few weeks after columnist Jack Anderson died and several months after he donated his archives to my university — two FBI agents showed up at my home, flashed their badges and demanded access to these decades-old documents.

I was surprised by the FBI’s sudden interest in journalism history and asked what crimes the Bureau was investigating. “Violations of the Espionage Act,” Special Agent Leslie Martell replied. The agents acknowledged that the statute of limitations had expired on any possible crimes committed that long ago but still wanted to root through our papers because even such old documents might demonstrate a “pattern and practice” of leaking.

Apparently, the FBI wants to prosecute people who might have whispered national security secrets decades ago to an investigative columnist who is now dead.

Ironically, for the past five years the FBI and other federal agencies have refused to turn over similar historical records to me under the Freedom of Information Act, even though almost all the people named in them are now dead. The government claims it would violate their privacy, jeopardize national security or — in the most absurd argument of all — compromise “ongoing law enforcement investigations.”

The federal agents told me their criminal probe involved lobbyists for the American Israel Public Affairs Committee (AIPAC) and requested that I inform them of the names of reporters who had once worked for Jack Anderson and who had pro-Israeli sources. I told them I felt uncomfortable passing on what would be secondhand rumors.

If I didn’t want to name names, Agent Martell said, she could mention initials and I could nod yes or no. That was a trick Robert Redford and Dustin Hoffman used in the movie “All the President’s Men.” I didn’t name any initials, either.

I tried to explain to the agents why it was extremely unlikely there could be anything in our files relevant to their criminal case: Jack Anderson had been sick with Parkinson’s disease since 1986 and had done very little original investigative reporting after that.

If the agents had done even rudimentary research, they would have known that. The fact that they didn’t was disquieting, because it suggested that the Bureau viewed reporters’ notes as the first stop in a criminal investigation rather than as a last step reluctantly taken only after all other avenues have failed. That’s the standard the FBI is supposed to use under Justice Department guidelines designed to protect media freedom. These guidelines were first drawn up under Richard Nixon’s administration and have worked well for the past generation.

“We’re not after the reporters,” Agent Martell tried to assure me. “Just their sources.”

I did not find that a comforting explanation. For academics, at the most mundane level, archival records may be lost or destroyed if police paw through them before they can be catalogued for posterity. Universities like my own may find it more difficult to persuade officials to preserve or donate their papers because of concern about government fishing expeditions. Freedom of inquiry and the public’s ability to know the truth about its history could be weakened.
For journalists, sources may be scared off from confiding in reporters about wrongdoing if they have reason to fear that the government will find out about it by rifling through journalistic files even past the grave. At a minimum, targeting dead reporters could serve as a back door approach to chipping away at the legal concept of journalistic privilege that has been afforded the press for decades. And the public understandably won’t trust the press if it’s turned into an arm of law enforcement.

By itself, what happened with the Anderson archives is small and extreme to the point of absurdity. In an age of terrorism with genuine and immediate national security threats, why is the FBI wasting its time trying to go through old archives of a dead reporter?

But the Anderson case is troubling because it is just part of a larger effort by the government to crack down on the media in the most sustained assault on the public’s right to know since the dark days of the Nixon White House.

The Bush administration has fired suspected whistleblowers, removed previously public records from historical archives, and barred the press from photographing returning caskets of U.S. soldiers for fear of undermining wartime morale. Most ominous of all, Attorney General Alberto Gonzales has threatened to bring criminal charges against journalists for publishing classified information under the antiquated 1917 Espionage Act that was used to imprison dissidents during World War I.

Prosecuting the press as if reporters are spies reeks of the tactics used in dictatorships, not democracies. Indeed, authoritarian regimes around the globe are already using America’s crackdown on the media to justify their own repression.

All too often, governments grossly exaggerate the harm journalists create by revealing secrets, choosing to blame the messenger for the message. Usually, when officials complain about release of classified information, their real concern is political embarrassment not national security.

History shows that instances of genuine damage to national security caused by reporters have been miniscule to non-existent.

In fact, national security leaks to the media are as old as the Republic itself. In 1796, a newspaper called Aurora published verbatim excerpts of President George Washington’s confidential communications to his Cabinet involving secret negotiations with Britain. The disclosure created a furor in international relations and was viewed by some as damaging the national security. Who leaked this national security secret? Thomas Jefferson, the secretary of state, was the number-one suspect.

Similarly, in the 1840s, the press published President James Polk’s secret diplomatic plans during the Mexican War. Historians suspect the secret national security information was leaked by then-Secretary of State James Buchanan.

Over the past half-century, the federal government has over-classified so many records that journalists are justifiably suspicious when national security is invoked to restrict information–especially when government officials themselves are so willing to leak classified information when it is in their own interests to do so.

The fact is that leaks increase when governmental abuses increase because whistleblowers turn to the press to get the truth out. This is a healthy and self-correcting mechanism in a democracy.

If anything, the problem isn’t that the press is too aggressive in national security reporting, it is that it is too timid. To cite but one example: At President Kennedy’s request, the New York Times held back reporting about the pending Bay of Pigs invasion — and JFK later admitted it would have been better for the country if the newspaper had revealed it.

Far more damage to national security has been caused over the years by government secrecy and deceit than by media reporting of classified information.

If the government effectively criminalizes leaks by turning the Espionage Act into a kind of Official Secrets Act, whistleblowers will inevitably shy away from informing the public about important national security issues abuses. Public discourse will diminish as journalists err on the side of self-censorship instead of on the side of freedom.

Either that, or Congress is going to have to spend a lot more money for prisons because you’re going to have a lot of reporters going to jail. Neither choice is palatable in a democracy.

Even merely threatening to jail journalists — under the Espionage Act or any other law twisted in such a fashion — sends a chilling message. As one journalist said about such a possibility:

 

So what if the case is ultimately thrown out of court? In the meantime, they have arrested a troublesome reporter, clapped him in jail, threatened him with ten years in prison, flushed out some of his sources, and in doing so, reminded other troublesome reporters that the same thing could happen to them. [The administration has] already won … a victory that will bear fruit every day, whenever any reporter holds back for fear of getting into trouble, whenever a source fears to come forward lest he be exposed, whenever an editor ‘goes easy’ for fear of government retaliation . . . whenever a citizen anywhere can be influenced to think of reporters as lawbreakers, the kind of people who have to be arrested.

 

That journalist was Jack Anderson, writing about the Nixon administration’s abuses during Watergate.

Unfortunately, his words appear to be equally relevant today. u

Mark Feldstein is an associate professor of media and public affairs and director of the journalism program at George Washington University. This article was adapted from his congressional testimony on the Anderson affair.