The American Bear

› Goodale: Pentagon Papers have lessons for AP case | Committee to Protect Journalists

[James] Goodale, who was general counsel for the Times during the Pentagon Papers and the architect of the paper’s legal defense—and is a member of CPJ’s board of directors—was quick to relate the current scandal to the precedent-setting case. “Notice [Holder] didn’t tell you why it was the worst national security leak, he didn’t tell you what [the damage was]…The lesson from the Pentagon Papers is: Don’t trust the government when it claims national security” concerns, Goodale said. He came to this conclusion in the process of researching his book, for which he poured over formerly classified documents from the case. “I wanted to give the government the benefit of the doubt, but about three quarters of the way through I realized it was totally nonsense, they never had a damn thing,” Goodale said. Four decades later, he noted, no one has ever shown damage to U.S. national security caused by publication of the papers. Reporters today may do well to consider this point as they debate what, if any, actual harm was incurred by the AP article that revealed a secret CIA operation and foiled terrorist plot in Yemen and is at the heart of the subpoena fracas.

While Goodale could not have anticipated the timely revelation of the secret AP subpoena, he clearly did have one current issue in mind when he decided to write his account: the ongoing saga of WikiLeaks and its embattled and polemic founder, Julian Assange. While acknowledging that many traditional journalists find Assange to be a baffling character, Goodale said, “If you’re angry at Assange for publishing the information, you should be mad at The New York Times too. Assange is [reporter] Neil Sheehan and The New York Times” in the Pentagon Papers case, he added. “Assange is the publisher, so there shouldn’t be any question we are dealing with a First Amendment issue. If we don’t recognize that in the digital age, we are in a lot of trouble.”

Of course, there are notable differences between Assange and the Times, whose own partnership in publishing the first set of leaked documents eventually publicly broke down. Assange received widespread scorn from the journalism community for WikiLeaks’ later disclosure of thousands of classified, unredacted U.S. diplomatic cables that potentially put people’s lives at risk. (CPJ, for example, documented at least one Ethiopian journalist who was forced to flee his country after he was cited in one of the cables.) Nonetheless, Goodale noted that the measure of whether publication of leaked material meets journalistic quality and ethical standards does not affect whether it qualifies for First Amendment protection. In other words, while WikiLeaks may not have taken care to redact or contextualize the data as the Times did, professional failures “do not [constitute] a legal distinction for the First Amendment.” Moreover, Goodale emphasized, journalists must be aware that the precedent of prosecuting WikiLeaks, essentially criminalizing the newsgathering process, would put the whole profession at risk.

Goodale has received a lot of press in recent days for stating that Barack Obama is on a path to becoming “worse for press freedom than [former U.S. President Richard] Nixon.” That’s the kind of headline that would make any president shudder, and in a sign the White House crisis-control team is on full alert, Obama unexpectedly called this week for a renewed push to pass the long-dormant federal shield law that would enshrine the reporter’s privilege to protect confidential sources. While many in the room with Goodale Thursday welcomed the move as an added protection for the press—most notably Judith Miller, who famously went to jail to uphold that principle—the bill comes with several controversial elements, including a national security exemption and the need to legally define who is a journalist in order to be effective.

Whatever happens with the legislation, Obama’s announcement was characteristic of the schizophrenic nature of the administration’s record on whistleblowers and leaks. The low level of tolerance for leaked information under Obama, and post 9-11 more generally, led Miller to question whether Goodale could have won the Pentagon Papers case in the 21st century. (After doing a numbers analysis of the current makeup of the Supreme Court, Goodale’s response was an emphatic “Yes.”)

As pointed out by CPJ Executive Director Joel Simon, the shield law and leak cases highlight that the Pentagon Papers case settled the issue of prior restraint (which has become largely irrelevant and unenforceable in the Internet era), but the debate on classified documents is unresolved. Decades after Goodale first articulated to corporate media lawyers the feasibility and importance of the First Amendment as a legal defense, he and his book are a handy and relevant reference for a new generation of attorneys tasked with protecting the press.

› Hear Ye, Future Deep Throats: This Is How to Leak to the Press | Nicholas Weaver

We now live in a world where public servants informing the public about government behavior or wrongdoing must practice the tradecraft of drug dealers and spies. Otherwise, these informants could get caught in the web of administrations that view George Orwell’s 1984 as an operations manual.

With the recent revelation that the Department of Justice under the Obama administration secretly obtained phone records for Associated Press journalists — and previous subpoenas by the Bush administration targeting the Washington Post and New York Times — it is clear that whether Democrat or Republican, we now live in a surveillance dystopia beyond Orwell’s Big Brother vision. Even privately collected data isn’t immune, and some highly sensitive data is particularly vulnerable thanks to the Third Party Doctrine.

So how can one safely leak information to the press?

Well, it’s hard. Even the head of the CIA can’t email his mistress without being identified by the FBI. With a simple subpoena or warrant, the FBI can obtain historical calling information (and with cellphones, location history); email messages (and records revealing the pattern of where and when the target accessed these accounts); internet activity; and much more.

Since even separate, innocuous contacts between a reporter and source may be sufficient for the FBI to establish a relationship in its investigations — and who knows what kind of leak triggers a crackdown — here’s my guide for potential leakers. [continue]

› The Perils of Wonkery | Peter Frase

… [The] wonk … needs to appear to be deeply knowledgeable about a wide range of obscure and technical subjects. But this entails concealing both one’s ideological biases and one’s substantive lack of knowledge, and relying on the borrowed prestige of academics and experts. In doing so, the wonk becomes the conduit for the experts, or more exactly a crucial means by which their authority is reproduced. The wonk takes the expert’s pronouncements at face value because they are serious, mainstream figures, and the fact that journalists do this reinforces their seriousness and mainstream-ness. One could hardly devise a better way of policing ideological boundaries and maintaining the illusion that the ruling ideology is merely bi-partisan common sense.

The unraveling of the Reinhart-Rogoff “fact” about debt and growth was only unusual because the supporting research was unusually sloppy. In that sense, critics are correct that there’s nothing particularly special about this one case. But the very absurdity of the episode makes it useful as a means of unmasking the entire corrupt enterprise of policy wonk journalism and its “just the facts, ma’am” pretensions. [++]

› How Not to Apologize for Supporting an Unnecessary War | Jordan Bloom

[N]one of [these non-apology apologies] bother me quite as much as Ezra Klein’s, who calls his support for the war an “analytical failure”:

… at the core of my support for the war was an analytical failure I think about often: Rather than looking at the war that was actually being sold, I’d invented my own Iraq war to support — an Iraq war with different aims, promoted by different people, conceptualized in a different way and bearing little resemblance to the project proposed by the Bush administration. In particular, I supported Kenneth Pollack’s Iraq war.

Take it away, Jacob Bacharach:

No. The core of your support for the war was a moral failure. A guy who murders his wife doesn’t get to hide behind a claim about bad analysis after he discovers that she wasn’t in fact screwing the mailman. Oh, you invented an imaginary war to support? That isn’t bad analysis. It’s a crime.

You will note that the commentariat is currently full of decennial mea culpas, and what that tells you is that people like Ezra Klein who skipped the protests in order to type in favor of the death of thousands have been richly rewarded with careers in the popular media. This makes their post-hoc apologies completely of a kind with their antebellum cheerleading: it entails no personal risk and carries with it the prospect of professional advancement.

There’s something so monstrously neutral, so Ezra Klein about the way he frames his apology–not my fault! Just bad data!–that reveals the folly of what Jay Rosen, Conor Friedersdorf, and others have called the “View from Nowhere” posture of objectivity. To say “It wasn’t worth doing precisely because the odds were high that we couldn’t do it ‘right’” assumes it’s actually a matter of odds, not morality or Constitutional prerogatives. Can Klein answer what odds would have been good enough to justify the death of thousands of American soldiers and tens of thousands of Iraqi civilians in a war in which the United States only had the faintest national interest? One shouldn’t fault him for his view on the war as a college student, and it’s too much to ask for someone on the Washington Post’s masthead to ever accept noninterventionist precepts. But after being deceived, is a little skepticism of either the information the government releases to the public or the projection of American power abroad too much to ask in view of his mistake?

› Newspapers have fired over 30,000 reporters in the last 5 years - Science and Climate journalists are the first to go.

climateadaptation:

“The Crisis in Climate Reporting.”  - An event by climate, environment, and media experts on how journalists are a critical conduit to discussing climate change.

The speakers explored several practical solutions and then launch into a decent Q&A. Some were simple, such as directing readers to share their reading materials or collaborate with authors from various news outlets (e.g., Mother Jones partnering with, say, Washington Post to work on and cross-post the same stories, which would reach different audiences.). It was good to hear some practical solutions rather than esoteric brainstorming.

The public is poorly served by reports about climate change that follow familiar lines and surface only when there’s a severe weather event or UN conference; meanwhile, media outlets like the New York Times are scaling back on environmental reporting.

Orion and media watchdog Free Press convened a panel of authors and activists (including Kate Sheppard, M. Sanjayan, Bill McKibben, and others) to propose concrete actions for improving the state of climate reporting in the mainstream media.

Climate Science Communications Week is winding down at Climate Adaptation!  For the entire week of Feb. 18 - 23, I covered how climate change is discussed by the media, scientists, researchers, academics, and politicians. If you have sources or ideas on communicating climate change, send to: http://climateadaptation.tumblr.com/submit

› Harsh Censorship in French Invasion of Mali | Jason Ditz

Noticed a conspicuous lack of specificity in the reports on the French invasion of northern Mali? It’s not an accident, but rather part of a deliberate French military strategy.

Reporters Without Borders issued a statement today faulting France for imposition of its “zero image of the war front” goal, keeping private journalists from covering most of the invaded African nation and confining most of the foreign reporters to the capital city.

Even there, coverage is difficult and downright dangerous, as the Malian junta summarily detains journalists regularly, often confiscating their equipment and beating them if their reports are seen as unsympathetic to the regime.

It took a solid week of war before France even considered allowing “embedded journalists” into the northern two-thirds of the nation, and those journalists are exclusively from French state media, limiting their objectivity.

French troops have been quick to limit even that access, with reporters allowed into the conquered city of Gao only to be forcibly removed in an “emergency evacuation” when rebels ambushed troops and launched a suicide bombing on the city’s outskirts.

› John Cusack: What Is an Assange? Part 2

John Cusack: So Jon, on the same terrain — if you give me information and I decide I want to put it out on, say Twitter, — and it’ll reach a million plus people — am I in the same class as Assange — if somebody sends me a video of a crime, and I believe a crime has been committed? Do I have a right or moral obligation to expose the truth…And am I protected?

Jonathan Turley: Well, this is a longstanding conflict that we’ve had in the civil liberties community with Congress. In fact, I testified before the House Intelligence Committee years ago on the move by a number of members to criminalize the publication of classified information, whether you’re a journalist or anyone else. So they were including all the journalists, as well as non-journalists.

And this had the support of the Republicans and Democrats. Members of Congress tend not to like whistleblowers, or journalists for that matter, because they get them off-script and when they are most vulnerable. They make this less controllable. I have previously testified before both Democratic and Republican members considering a disastrous move toward criminalizing the publication of classified information regardless of how you receive it.

The question of your releasing the same information on Twitter is interesting. Given your status, you actually reach more people than virtually all of the daily newspapers. So you’re reaching over a million-plus people with a single tweet that most newspapers would dearly love to replicate.

John Cusack: We both blog and write on line — as we are now —

Jonathan Turley: Then, we get into this serious question of why you’re not a journalist but Chris Matthews is. I mean, you actually are likely to reach 100 times more people than MSNBC would on any given evening because of your status.

John Cusack: One of Arianna’s big ideas was to create what she calls citizen journalists to participate and have your voices heard, — and ordinary people could be alongside — right up there with Hillary Clinton. And blog, and she’ll aggregate news. She’s created this kind of revolution in her own way. But it has to do with connectivity and aggregation and the idea of a citizen journalist. So is Assange basically a citizen publisher? It gets back to the same question — what are the rights of people to expose the truth? Where are their protections?

Jonathan Turley: I think that’s right. And this is where I think the media has decided to go conspicuously silent. Because there’s no question that Assange’s release of this information resembles the type of act for which journalists have received Pulitzers. He released information that came to him, and information that had not been released in any other forum. That information dealt directly with government deception and potential crimes.

So it walked and quacked just like a journalistic story. But they’re not willing to call him a journalist.

John Cusack: And so therefore, he has no protections?

Jonathan Turley: Well, that’s how the US government is dealing with it. They have rather transparently opted to deal with him as a suspected hacker. And they’re going to pursue him on that ground. If they get their hands on him, I expect they’re going to do everything they can to keep him in jail. They need to hoist the wretch, they need to make it clear that you won’t get away with this if you embarrass the government and release this type of information. Both the Bush and Obama Administration have previously threatened journalists. They are not going to hold back on Assange if they have already threatened to prosecute reporters.

John Cusack: As the man once said — You have the right to free speech — as long as you’re not dumb enough to actually try it. So it’s another part of the widening clamp-down on civil liberties and freedom of speech.

Jonathan Turley: Indeed.

[continue]