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Obama administration and press are at odds over the administration's 'transparency' -- or lack of it

This article first appeared in the St. Louis Beacon, June 14, 2010 - LAS VEGAS - After 17 months in office, President Barack Obama has developed a surprisingly confrontational relationship with the press, which generally sees him as having failed to deliver on his promise of running the most "transparent" White House in history.

An incident at last week's convention here of Investigative Reporters and Editors (IRE) illustrated the deterioration in relations between the president and the press. Two of the five panelists who were supposed to speak to the IRE's showcase panel on anonymous sources did not show up because of the Obama administration's crackdown on leaks of national security information.

Julian Assange, the head of WikiLeaks, which published the video of U.S. soldiers killing two Reuters employees in Iraq, is reportedly being sought by U.S. authorities because the source of the Iraqi video may also have turned over additional classified documents.

The other no-show was James Risen, reporter for the New York Times, who wrote the Pulitzer Prize winning stories in 2005 that disclosed the National Security Agency's warrantless wiretapping program. Leonard Downie Jr., vice president of the Washington Post and moderator of the panel, said Risen's lawyer had advised him not to appear because he is under subpoena to disclose sources. During the Bush administration, Risen frequently spoke at similar journalism conferences.

Downie remarked: "It's obvious on the evidence so far that the Obama administration is not moving very fast on its pledge of transparency. It's important for news organizations to be more proactive than they have been in pressing for transparency."

Here are recent developments:

  • In April, Thomas A. Drake, a former NSA supervisor, was indicted in connection with leaking information to a Baltimore Sun reporter about his concern that the NSA had wasted hundreds of millions of dollars by picking the wrong technology for eavesdropping.
  • Later in April, the Justice Department approved a subpoena for Risen in connection with an investigation into the source of a leak of classified information that formed the basis of a chapter of Risen's 2006 book, "State of War." The chapter disclosed a questionable effort by U.S. intelligence agents to provide phony scientific information to Iran's nuclear program.
  • Last week, the Pentagon confirmed the arrest of Specialist Bradley Manning, a 22-year-old Army intelligence analyst accused of providing the video of U.S. soldiers in an Apache helicopter killing at least a dozen civilians in Baghdad, including the two Reuters photographers. Specialist Manning also has claimed that he gave WikiLeaks thousands of classified United States diplomatic cables and video of a United States airstrike in Afghanistan that killed 97 civilians last year. This is reportedly one reason that the government may be looking for Assange, the Australian who runs WikiLeaks -- a website headquartered in Iceland that invites the posting of classified government and corporate documents.
  • Lawyers and journalists attending the IRE conference here said that based on their experience trying to obtain information, the Obama administration has generally failed to deliver on the president's Inauguration Day pledge of openness or on Attorney General Eric Holder's spring 2009 memo to government agencies calling on them to release more information more quickly.
  • Last week, the leadership council of the nation's leading organization of journalism educators, the Association for Education in Journalism and Mass Communication (AEJMC), issued a strongly worded criticism of the president's failure to hold press conferences and make information available to journalists. "Obama's lack of presidential press conferences and his general lack of transparency and accessibility to journalists during his administration are in sharp contrast to the platform on which he ran for president in 2008," the letter said. "During that campaign, Obama pledged a new era of openness."

David Smallman, a New York lawyer active in Freedom of Information Act cases, said at an IRE panel that Justice Department lawyers scoffed at Holder's openness memo in negotiations over the release of documents.
"IRE and others read the Holder memorandum and said 'Hallelujah. The world is about to change.' The reality of that has not been the same. I raised the Holder memorandum" with a Justice Department lawyer who dismissed it with the comment, "That's nice. What else you got?"

Mark Caramanica of the Reporters Committee for Freedom of the Press said, "What we found is that between the rhetoric and what is happening on the ground, there is a disconnect." Caramanica said that government statistics show that the government is invoking a privacy exception to the FOIA to deny the release records just as often in the Obama as the Bush administration.

Reporters investigating this year's fatal coal mine accident in West Virgina are being denied records that had routinely been provided during the Clinton administration, Caramanica added.

Some experts on government secrets think that the administration should go further still to cut off national security leaks, which they say are at an epidemic level.

In his book "Necessary Secrets," Gabriel Schoenfeld proposed prosecuting journalists as well as leakers. "The system is plagued by leaks," said Schoenfeld, a fellow at the conservative Hudson Institute. "When you catch someone, you should make an example of them."

No journalist has been prosecuted under the Espionage Act, passed during World War I, although the Bush administration threatened to use the law against journalists. On occasion, the law has been used against government officials who leaked classified information.

One such prosecution was against Daniel Ellsberg who leaked the Pentagon Papers showing that the White House had misled the American people about the Vietnam War. That prosecution was dismissed because of prosecutorial misconduct.

Organizations, such as the Government Accountability Project, which defends whistleblowers, argue that the Espionage Act should not be used against government leakers because of the importance of whistleblowing in disclosing government wrongdoing.

Defenders of Drake's leak in the NSA story point out that he had gone through all the government channels possible to try to rectify the NSA's poor choice of eavesdropping technology before finally going to the press.

Defenders of the Obama administration note that the former Baltimore Sun reporter who wrote about Drake's complaints about the NSA technology, was not brought into the criminal investigation of Drake.

The Justice Department has a policy that dates back to the Watergate era that limits subpoenas for reporters in anonymous source cases to situations where the information is essential and investigators have tried everything possible to obtain the information without subpoenaing the reporter.

The Bush administration subpoenaed Risen in 2008, but the reporter fought the subpoena and did not have to appear before a grand jury. Holder had to decide whether to renew the effort.

The Obama administration has supported passage of a federal shield law that would enable reporters to protect their sources in many cases but would allow judges to force journalists to disclose their sources in most national security cases. The good will that the administration won from the press for support the bill has been lost by the renewal of the subpoena against Risen.

One person who did show up at the IRE panel was Valerie Plame, whose identity as a CIA analyst was leaked to the press by the Bush White House.

Plame said she wasn't sure what she thought about WikiLeaks. "Sunshine as disinfectant is a good idea, but I haven't made up my mind," she said. "I come from a culture where secrecy is good. The reality is that sometimes you have to get reliable information to people."

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.

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