President Obama had a reputation when he took office as a liberal former constitutional lawyer who had condemned Bush-era national security policies.
But he has proven to be even tougher than President George W. Bush on prosecuting national security leaks. The seizure of Associated Press phone records is just the latest example.
The administration has prosecuted six people for giving reporters information about secret national security operations — twice as many cases as all previous presidents combined.
It’s a record former Justice Department spokesman Matt Miller finds a little surprising.
“I can tell you it’s not like anyone in the administration sat down and made a decision that that was going to be one of our highest priorities,” Miller says.
Miller, who used to advise Attorney General Eric Holder, says government officials share a sense that there are more leaks than there used to be, and they must be stopped.
“It has nothing to do with stopping the press from doing their job,” he says. “The goal is to stop people who have taken an oath to protect national security from disclosing secrets that harm it.”
Journalists’ groups say that’s a distinction without a difference.
To First Amendment advocates, the government’s explanation is like saying: “We’re not trying to prevent people from drilling for oil — we just want to keep the oil in the ground.”
Lucy Dalglish, who runs the journalism school at University of Maryland, College Park, says the only reason to do this is to send a message.
“You send a message to both the media and … to federal employees: You leak — we’re going to get you,” she says. “And I’m being told by reporters it’s being pretty effective.”
That is to say, investigative journalists report that their sources are drying up, which, they say, threatens the free press that a democracy depends on.
The administration insists that it values both press freedoms and national security. This week, the White House said it supports a federal shield law for journalists. In a single press briefing, spokesman Jay Carney used the word “balance” 16 times to describe the president’s views.
“He does believe that we need to take measures to ensure that the media can pursue investigative journalism in an unfettered way,” he said. “And we have to balance that goal with the very real national security interests that we have as a nation.”
In fact, the White House may have little to do with where the administration ultimately strikes this balance. The most important decisions are made within the Department of Justice, says Pat Rowan, who worked there for nearly 20 years, including as head of the National Security Division.
“It’s possible that administration officials are talking to the highest levels of DOJ and saying, ‘We’ve got to do something about these leaks. These leaks are killing us.’ But thereafter, it’s really up to the Department of Justice, the FBI and the prosecutors to put these cases together,” he says.
Within the Justice Department, decisions in these cases almost always go to the attorney general himself, unless he is recused, as he was in the AP case.
NPR’s Carrie Johnson asked Holder this week how often he has ordered prosecutors to seize reporters’ records.
“I’m not sure how many of those cases that I have actually signed off on,” he answered. “I take them very seriously. I know that I have refused to sign a few — pushed a few back for modifications.”
Regardless, there has been a spike in numbers.
Some of these cases were holdovers from the Bush administration. Investigating national security leaks takes a long time, Rowan says. “When all’s said and done, it could be years between when the investigation began and when the case is actually brought out into the open through the filing of charges.”
But everybody seems to agree on one key reason the numbers have gone up. As Rowan puts it: “I do think some of these cases are easier to make than ever.”
Rowan says technology makes it easier to leak — and easier to get caught.
Miller, the former Justice Department spokesman, agrees.
“As with every crime, people leave more digital footprints today than they used to,” he says.
Dalglish, who used to run the Reporters Committee for Freedom of the Press, says she has been giving journalists this advice for years: “Technology is not your friend.”
“If you have a source that you need to protect, stay off the Internet, stay off the phone, don’t use your credit card,” she explains.
Instead, she says, talk to your sources like spies do on TV — on a park bench, face-to-face.