“Circling The Media Wagons”: Journalists Are No Different Than Other Citizens In The Eyes Of The Law
When will journalists take responsibility for what they do without circling the wagons and shouting that the First Amendment is under attack?
I’m talking about the case of Fox News correspondent James Rosen.
The case should be described as a State Department contract worker who signed a non-disclosure agreement, yet is alleged to have leaked Top Secret/Special Compartmented Information (TS/SCI) in violation of criminal law. He also is alleged to have lied to the FBI.
Search for a story analyzing damage to intelligence collection caused by the leak and what will emerge are stories about the threat to the First Amendment and journalists.
Some background: On June 11, 2009, Rosen published a scoop on Fox News’s Web site that disclosed how North Korean officials planned to hold another nuclear test in response to an expected U.N. Security Council resolution condemning Pyongyang for recent tests of nuclear and ballistic missiles.
It wasn’t the substance of the leaked info that most deeply concerned the intelligence community. Rather it was that Rosen’s story alerted the North Koreans that the United States had penetrated their leadership circle. A second concern was how quickly someone with access to TS/SCI information — a limited, top-level security classification applied primarily to electronically intercepted messages — had leaked it.
As Rosen noted in his article, the CIA had “only learned of North Korea’s plans this week” and from “sources inside North Korea.” In short, the story warned Pyongyang’s counterintelligence specialists that the United States had probably obtained conversations or messages of top-level North Korean officials by electronic intercepts or through agents.
The U.S. leak probe quickly focused on 96 individuals who, before Rosen’s story or on publication day, had access to the relevant intelligence report. Five of those with access to the North Korean report had had contact with Rosen in the weeks or days leading up to his story’s publication.
As of May 28, 2010, 11 months after the probe began, only Stephen Jin-Woo Kim, a senior intelligence adviser in the State Department’s Bureau of Verification, Compliance and Implementation, had “accessed the intelligence report and . . . had contact with the reporter [Rosen] on the date of publication of the June 2009 article,” according to an affidavit by FBI Special Agent Reginald B. Reyes.
The probe showed that the report had been called up on Kim’s computer three times earlier on the day Rosen’s story appeared. Investigators also found records showing that about the same time the classified report was on Kim’s computer screen, “two telephone calls were placed from his desk phone to the reporter,” meaning Rosen, according to the Reyes affidavit.
Using State Department security-badge records that show comings and goings at State’s main building, investigators realized that an hour after those phone calls Kim and Rosen left the building within a minute of each other. Thirty minutes later they returned within four minutes of each other. Several hours later, Rosen’s story appeared on Fox’s Web site.
Recent articles have implied that the government was physically following Rosen, but investigators had simply used federal records to track him.
Further investigation of Kim showed seven calls between his desk phone and Rosen’s phones on the day of the article, and about 29 others between May and July 2009. In a Sept. 24, 2009, FBI interview, Kim denied being Rosen’s source and having any contact with Rosen after meeting him in March 2009.
On Nov. 9, 2009, investigators got a warrant and searched Kim’s e-mail accounts. They found that he and Rosen had set up aliases and that Rosen sought intelligence about North Korea.
All reporters covering national security, including myself, recognize we regularly seek classified information. We also know that sources can be accused of breaking the law if caught passing highly classified information to those not cleared to receive it, such as journalists.
While getting my degree at Georgetown Law School and later when I was subpoenaed in the probe of the leak of the identity of CIA covert officer Valerie Plame Wilson, it became clear that reporters could be labeled co-conspirators, aiders and abettors or accessories in criminal leak cases.
To be so named in an application for a search warrant when the government wants to get a journalist’s or any citizen’s e-mails or phone records does not mean prosecution. A journalist, however, is not very different from other citizens in the eyes of the law when it comes to the government seeking records from a third-party provider such as Google or a phone company.
Applying labels such as co-conspirator provides a probable cause for the judge to grant the warrant, as in the Rosen case. If Rosen offered money or some other reward, it might be a different case. I believe the First Amendment covers the right to publish information, but it does not grant blanket immunity for how that information is gathered.
When First Amendment advocates say Rosen was “falsely” characterized as a co-conspirator, they do not understand the law. When others claim this investigation is “intimidating a growing number of government sources,” they don’t understand history.
The person or persons who told the Associated Press about the CIA operation that infiltrated al-Qaeda in the Arabian Peninsula, and Kim — or someone else — who informed Rosen about North Korea, were not whistleblowers exposing government misdeeds. They harmed national security and broke the law.
The White House Correspondents’ Association board issued a statement May 21 saying, “Reporters should never be threatened with prosecution for the simple act of doing their jobs.” But it admitted, “We do not know all of the facts in these cases.” The board added: “Our country was founded on the principle of freedom of the press and nothing is more sacred to our profession.”
I worry that many other journalists think that last phrase should be “nothing is more sacred than our profession.”
By: Walter Pincus, The Washington Post, May 27, 2013
“Karl Rove’s Area Of Expertise”: The Guy Responsible For More Than His Share Of Meaningful Scandals
The controversy surrounding Justice Department leak investigations, and surveillance of journalists and phone logs, is clearly a serious matter. But is Karl Rove is the best person to be discussing this?
Appearing Monday on Fox News, Karl Rove attacked the Obama administration’s surveilling of Fox reporter James Rosen in a leak investigation as “chilling” and its rationale for doing so “beyond the pale.”
“We had to confront this question during the Bush administration,” he said. “There were leaks of classified information and in each and every instance, the focus was on the potential leak, not the reporter who received it.”
Rove defended the need to prosecute leaks but said the media shouldn’t be targeted. “This is really chilling,” he said.
If we remove Rove from the equation, I’m sympathetic to concerns about the chilling effect the leak investigations will have on journalists and their sources. It’s a point Rachel will probably explore on tonight’s show in more detail.
But if we keep Rove in the equation, there are some noteworthy angles to keep in mind. First, like Dave Roberts, I’m not sure how we arrived at the point at which Karl Rove can appear on national television to scrutinize White House controversies. The guy was, after all, responsible for more than his share of meaningful scandals.
Second, I’m even less sure how we arrived at the point at which Karl Rove can appear on national television to discuss and scrutinize White House controversies involving leaks of classified information. It was Rove, after all, who was very nearly indicted for his role in the White House outing an undercover CIA official as part of a larger political strategy.
Third, the focus during the Bush/Cheney era was “on the potential leak, not the reporter who received it”? I don’t mean to sound picky, but during Bush/Cheney era, the Justice Department “improperly gained access to reporters’ calling records as part of leak investigations.” Indeed, it happened quite a bit. One reporter went to jail to protect a White House source during a leak investigation, and another reporter very nearly met the same fate.
Does Rove not remember any of this?
By: Steve Benen, The Maddow Blog, May 20, 2013
“Ethics For Thee, But Not For Me”: Should Jonathan Karl Reveal His Benghazi Email Source?
The controversy surrounding the editing of the administration’s Benghazi talking points took an interesting turn on Monday when CNN’s Jake Tapper reported that a newly obtained email from White House aide Ben Rhodes written during the editing of those talking points “differs from how sources inaccurately quoted and paraphrased it in previous accounts to different media organizations.”
Tapper was referring, in part, to a May 10 report from ABC News’ Jonathan Karl, who in that report claimed to be citing both administration “emails” and “summaries” of those emails, provided what appeared to be direct quotes from those emails, and said on air that he had “obtained” them. Karl reported the emails suggested the White House had been deeply involved in crafting a political response to the terror attack that occurred at the U.S. diplomatic facility in Benghazi September 11, where four Americans were killed. The ABC exclusive, accusing the administration of having “scrubbed” vital information from the talking points, ignited a controversy about the White House’s handling of the attack.
Referring to the emails quoted in the ABC piece, Tapper stressed that, “Whoever provided those quotes and paraphrases did so inaccurately, seemingly inventing the notion that Rhodes wanted the concerns of the State Department specifically addressed.”
(Both the Rhodes email and those of the State Department bolster testimony from then-CIA director David Petraeus noted, the talking points were changed to avoid interfering with the ongoing investigation into the perpetrators.)
As Media Matters noted, Karl responded by explaining that he had not actually reviewed the emails himself, but had been “quoting verbatim a source who reviewed the original documents and shared detailed notes.” He added that the source “was not permitted to make copies of the original e-mails,” indicating that Karl’s original piece was based entirely on his source’s summaries.
Karl insisted that the summaries represent an accurate take on the emails.
But the email obtained by CNN makes it clear that in at least one key instance Karl’s source, who he quoted “verbatim,” got the emails’ contents wrong, leading to a misleading picture of the process by which the talking points were edited.
Was that error accidental? It’s hard to imagine how simply writing down the contents of an email could lead to such a glaring discrepancy. And the administration’s release yesterday of roughly 100 pages of emails detailing the exchanges between administration aides around the creation of those talking points does even more to put out the fire that Karl helped to ignite. This raises the question of whether misinformation was passed along to Karl deliberately in order to create a political firestorm.
The revelation that the source passed along inaccurate summaries of the emails raises troubling questions for Karl and ABC News: Do Karl’s bosses know who the source is who misled the reporter? And do other reporters at ABC News regularly use, and trust, the same source?
Another key question is whether Karl should reveal the source who misled him. While journalists take seriously the vow to not reveal the identity of confidential sources in exchange for the information that those sources provide, it’s not unheard of for journalists to reveal source identities if it’s proven that that person badly misled a reporter or passed along bogus information. Some observers think that’s what happened in the case of the Benghazi talking points.
“The answer here is that Karl pretty clearly got burned by his source,” wrote Talking Points Memo editor, Josh Marshall.
Reporters enter into an agreement and give anonymity to sources in exchange for information, and specifically, in exchange for reliable information. But when sources pass along provably false misinformation, and particularly when they do it in a plainly partisan fashion, the nature of that agreement changes and under some newsroom interpretations, reporters are no longer bound to keep secret the name of the unreliable source. In fact, it’s sometimes argued reporters are obligated to ‘burn’ their source in the name of disclosing attempts at misinformation.
“Some journalists adhere to a code where the pledge of anonymity is broken if the source lies,” noted the New York Times’ then-managing editor, Jill Abramson, in 2009.
This newsroom ethics issue was raised prominently during the Valerie Plame leak investigation under the Bush administration. While the White House was sparring with anti-war critics, such as Valerie Plame’s husband, Joe Wilson, who accused the administration of manipulating intelligence, conservative columnist Robert Novak wrote a column pushing back against Wilson. Citing “two senior administration officials,” Novak named Wilson’s wife and identified her as a CIA “operative on weapons of mass destruction.” Outing an undercover CIA employee is against the law and Novak’s column sparked a criminal investigation to determine who had provided him with that information.
At the time, the New York Times’ public editor, Geneva Overholser, noted that journalists ought to speak out against ethical lapses by their sources. She advised the following [emphasis added]:
In this case, then, journalists should call upon Mr. Novak to acknowledge his abuse of confidentiality and reveal his sources himself — thereby keeping the control of confidentiality in journalistic hands rather than in those of the legal system.
Should Karl follow the same advice?
By: Eric Boehlert, Media Matters For America, May 16, 2013
“It’s ACORN’s Fault”: Fake Prostitutes, Fake Terrorists, And The Trouble With Conservative Media
Just before the 2012 election, the Daily Caller, a website run by Tucker Carlson, produced a blockbuster report claiming that New Jersey senator Robert Menendez had frequented underage prostitutes in the Dominican Republic, and they had the prostitutes’ testimony to prove it. Bizarrely, mainstream media did not pick up the story, Menendez was re-elected, and to almost no one’s surprise, the whole thing now appears to have been a slander cooked up by Republican operatives. How did such a thing happen? The answer is, it’s ACORN’s fault. Hold on while I explain.
It turns out that Republican operatives pitched the Menendez story to ABC News at the same time as the Daily Caller, but after looking into it ABC decided it was probably bogus, as they explain here. It was pretty obvious the women were being coached, and their stories just strained credulity:
Her account of sex with Menendez in the video interview was almost word-for-word the account given by two other women who were produced for interviews about having sex with the man they knew only as “Bob.”
Asked during the interview with ABC News how she knew that the man named “Bob” was a United States Senator, one of the other women said she had put the name “Bob” into a web search site and a picture of Menendez popped up.
Only a liberally biased journalist could be at all skeptical of that story, which explains why ABC passed on it, and the Daily Caller ran with it. And lo and behold, one of the women eventually came forward with an affidavit saying she had been paid to accuse Menendez of patronizing her services. And this only the latest in a string of instances in which conservative media outlets have embarrassed themselves by “reporting” things that turn out to be absurdities or outright fabrications, from Jeff Sessions’ crazy GAO report to Chuck Hagel’s relationship with the fictional “Friends of Hamas” (Michael Calderone has a long story exploring this issue).
What does this have to do with ACORN? You’ll remember that the group, which had been mismanaged for a long time, was brought down by a video in which young James O’Keefe claimed he had gone into ACORN offices dressed as a pimp, with a girl he claimed was an underaged prostitute, and got advice on how to set up his prostitution business from ACORN staff. It turned out that much of what O’Keefe said was false (he didn’t actually wear the pimp outfit when visiting the offices, and he got tossed out of one ACORN office after another before finally getting some employees on tape giving what seemed like helpful advice), but the damage was done. Conservative media at all levels swung into action against ACORN, joined by Republican politicians. In short order, the group disintegrated, and went out of business in 2010.
This weekend, Up With Chris Hayes featured a panel with a group of conservatives about the state of the conservative media, and during the discussion, Hayes made an excellent point, tying the buffoonery of outlets like the Daily Caller, Breitbart, and the Washington Free Beacon back to ACORN. “The ACORN thing ruined a lot of conservative media,” he said, because it worked. O’Keefe targeted ACORN, and when it was all over, ACORN no longer existed. “It sent everyone chasing down this rabbit hole: what’s going to be the next undercover sting operation that destroys part of the left?”
I’d argue that looking for something that will produce the next ACORN—an actual scalp—is part of the explanation for why these outlets do what they do how they do it, but at heart it’s an issue of psychology. It’s about how they view liberals in general and Barack Obama in particular: not as people who are wrong or misguided, but deeply, fundamentally, corrupt and immoral. So even when these conservative journalists hit upon a story that may have some substance to it, their fervent belief that corruption and immorality lies beneath every administration policy and beats within the heart of every Democrat ends up twisting their approach to the story and eventually destroying their credibility. It will never be enough for them to discover that, say, a program to track guns moving from the United States to Mexico was incompetently handled, and the people responsible should be held accountable. Instead, they have to believe that it was all part of a grand conspiracy to send jackbooted thugs into Americans’ homes to take away their guns, a conspiracy that went all the way to the Oval Office. When it turns out not to be so dramatic, they end up looking foolish.
And when you’re so convinced that your opponents are corrupt to their very core, crazy sting operations exposing that sinister corruption begin to look like the appropriate way of attacking them. Why bother poring through the details of policy, when those bastards are probably using underage prostitutes and stealing money and intentionally letting Americans die in war zones and consorting with terrorists and who knows what else?
As I argued last week, the problem for the right goes beyond the media people themselves; it runs through their elected officials and the audiences to whom both are appealing. And lo and behold, it turns out that the budget bill House Republicans just submitted contains a provision mandating that no government funds be given to ACORN, which is kind of like prohibiting the government from buying any Wang computers. But if you can’t find any new corruption to attack, you might as well go after an organization that ceased to exist three years ago. That’ll show ’em!
By: Paul Waldman, Contributing Editor, The American Prospect, March 6, 2013
“An Idiot?,Yes”: Oh Please, The White House Didn’t “Threaten” Bob Woodward
The country is in an uproar because people are saying that a senior White House official “threatened” legendary journalist Bob Woodward because of something he planned to publish.
Now, I haven’t seen the video of Bob Woodward talking about this incident, so I’m not sure whether Woodward actually said he was “threatened” or whether that’s a media amplification. But people are saying he was threatened. So…
If a very senior White House official did, in fact, “threaten” Woodward–if the official promised that a gang of thugs would drop by Woodward’s house later, for example, or even if the official said no one in the White House would ever speak to Woodward again–then, fine, this might be worth talking about.
But according to Ben Smith of BuzzFeed, here’s what the senior White House official actually said to Bob Woodward (in an email):
“You’re focusing on a few specific trees that give a very wrong impression of the forest. But perhaps we will just not see eye to eye here. … I think you will regret staking out that claim.”
That’s it?
That’s the “threat”?
The official wasn’t even saying that Woodward would “regret” publishing whatever he planned to publish because the official would get him back for it later. He was saying Woodward would regret it because Woodward would be proven wrong.
I’m not sure what it is that non-journalists think that aggressive public relations folks do for a living, but this is exactly what they do:
- They make friends
- They whisper sweet nothings
- They flatter
- They dole out information favors
- They guilt-trip
- They threaten
- They yell
- They bully
- They impose the silent treatment
- They say you are about to ruin your reputation and destroy your career
- They beg
- They plead
- They promise
- They push every button they can in the hopes of finding one that works
They do all this in the hope of influencing coverage in the way that they are paid to influence it.
Among a particular breed of PR professional, that’s all part of the job.
If you’re in the journalism business, meanwhile, growing a thick skin–and occasionally yelling right back–is also part of the job.
I am sure that on many occasions, White House officials have completely lost it at journalists, possibly even threatening them. But in the annals of PR professional-journalist communications, the “threatening” email that Woodward received is actually quite polite and respectful.
“Perhaps we will not see eye to eye here?”
The official didn’t even tell Woodward he was an idiot!
By: Henry Blodget, Business Insider, February 27, 2013
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