On June 28, the Guardian (UK) reporter Glenn Greenwald delivered a speech at a Socialist Convention in Chicago. He opened by thanking the conference organizers for allowing him to participate when "I wasn't going to be able to actually physically come to the United States. Instead, he spoke "from the comfort of [his] little Skype prison. Which...is actually definitely preferable to an actual prison." The American-born Greenwald chose to stay in England. He chose wisely. It is likely he would have been detained by authorities once his soles hit U.S. soil. [Take note if you are still in the US and still haven't obtained your second citizenship and passport...]
Greenwald is the journalist who broke the story of the century-to-date. National Security Agency whistleblower Edward Snowden handed him files that proved the NSA was gathering massive and illegal data on almost everyone, almost everywhere. In response to this leak (and others in the last three years), Obama is attempting to criminalize the act of investigative reporting. He prefers the alternative of a press that reports only what the state permits and never asks independent questions.
Obama confronts problems in his quest to convert a quasi-free press into one that is a lapdog. Yet, only by doing so, can he be sure of plugging the leaks about his administration's corruption and lies. Obama will spare nothing and no one to do so because the leaks are bankrupting his political credit at home and abroad.
Dealing With Whistleblowers
The whistleblowers themselves present no legal problem. America has long criminalized the flow of information from classified documents to the public on the basis of the Espionage Act of 1917. After all, theft of documents is not covered by the First Amendment. But Obama has made such prosecutions into an art form. He has prosecuted more than twice the number of whistleblowers under the World War I act than all previous presidents combined - eight as opposed to three. One reason for this increase is that Obama has classified an amazing amount of material; it is not illegal to disclose information that used to be readily available.
Did I say art form? I meant to say a Greek tragedy or a comedy routine.
The Greek tragedy is the persecution of Bradley Manning whose whistle blowing laid bare the savagery and lies of America's conduct in the Iraq and Afghan wars. For pulling back the veil, he was imprisoned for over three years without trial and held in conditions that human rights organizations called 'torture.' He has pleaded guilty to charges that will imprison him for 20 years, and a death sentence is still possible.
The comedy act is the persecution of Snowden. From the relative safety of Hong Kong, Snowden released files that showed the incredible extent of NSA's covert surveillance of peaceful Americans and foreign governments. The heavy-handed response of the U.S. was to demand Snowden's extradition. But they put the wrong middle name on Snowden's extradition papers, and he used the time to flee to a Moscow airport for sanctuary; he has been trapped there ever since. When a diplomatic plane carrying the President of Bolivia left Moscow recently, the U.S. strong-armed several European nations to take an almost unprecedented step; they denied the President's plane permission to cross through their air space. The reason? A still unidentified source had informed them Snowden was on board. He wasn't. The international repercussions will spin out for months or years, and needlessly so. Apparently no one in the White House realized there were two airports in Moscow and the plane had departed from the other one. The most powerful central intelligence agency in the world does not know how to fill in a blank or how to consult a map.
Dealing With Investigative Journalists
Investigative journalists are more problematic than leakers. To criminalize journalism, Obama needs to bypass First Amendment protections and ignore the fact that it is now illegal to publish classified documents in America. (There are narrow exceptions such as nuclear secrets.) To accomplish this end run, Obama is employing a legal sleight of hand.
A new crime is being proposed: soliciting the disclosure of classified information. Arranging meetings with a source could be punishable under the Espionage Act as aiding, abetting or co-conspiring, and the investigative reporter could be charged as a co-leaker. Pursuing a story from a government whistle blower would become a criminal act. Of course, pursuing such information is almost the definition of an investigative reporter's job. He is the antithesis of a reporter who writes up only the talking points that the White House press secretary has approved.
It would be difficult, but criminalizing journalists under the Espionage Act is Obama's best chance at killing a free press that publishes leaks. Certainly it is far easier than criminalizing the publishers themselves. As Columbia law professor Daniel C. Richman observed, "I suspect there is a real desire on the part of the government to avoid pursuing the publication aspect if it can pursue the leak aspect. It would be so much neater and raise fewer constitutional issues."
The Media Barks
Obama's greatest allies in criminalizing journalism are the brave media people whose reporting on Greenwald essentially consists of going "arf, arf!" In his Skyped speech, Greenwald praised them as actors who played "journalists on TV."
The anti-journalist media trend seems to have been launched by David Gregory of MSNBC's "Meet the Press." During an interview with Greenwald, Gregory asked, "To the extent that you have aided and abetted Snowden, even in his current movement, why shouldn't you, Mr. Greenwald be charged with a crime?....The question of who's a journalist may be up to a debate with regard to what you're doing." (Greenwald also conducted this exchange from England.)
Then Andrew Ross Sorkin of the New York Times stated "I would arrest [Snowden] and now I'd almost arrest Glenn Greenwald..." He later retracted the statement in the face of bitter criticism but other media people, like Piers Morgan of CNN, stand by their calls to criminally investigate Greenwald. Ironically, the last cry for blood came from the Washington Post. This is ironic because the Post also leaked Snowden's documents in June.
The question asked by Gregory is being repeated in the mass of commentary I scan each day: "Who is a journalist?" A theory being floated is that you cannot be both an activist or advocate and a journalist at the same time. The theory is being used to discredit Greenwald's credentials which, in turn, could remove from him the special legal protections enjoyed by the press. It does not matter that he has a long track record in journalism or that he writes for one of the most respected newspapers in Britain. If the professional discrediting of Greenwald is successful, then he could be charged as an activist co-leaker and the First Amendment would be side-stepped. The Obama administration would define who is a journalist and freedom of the press would become an oxymoron, like military justice.
Greenwald deserves the last word. When the 'charge' of activism was leveled at him by David Carr in the New York Times, Greenwald responded:
"It is not a matter of being an activist or a journalist; it's a false dichotomy. It is a matter of being honest or dishonest. All activists are not journalists, but all real journalists are activists. Journalism has a value, a purpose - to serve as a check on power....I have seen all sorts of so-called objective journalists who have all kinds of assumptions in every sentence they write. Rather than serve as an adversary of government, they want to bolster the credibility of those in power. That is a classic case of a certain kind of activism."