Poynter: “It won’t take me long to alienate everyone in the room,” Jeffrey Toobin told an audience in New York Friday. “For better or worse, it has been clear there is no journalistic privilege under the First Amendment.”
The New Yorker staff writer and CNN commentator was appearing on a panel as part of a conference called Sources and Secrets at the Times Center. A lot has already been written about the conference, so I’m going to pull out a theme that appears again and again in my notes: How much protection do reporters really have with regard to sources, and how much, if any, protection would a federal shield law give them?
New York Times reporter James Risen, who is fighting an order that he testify in the trial of Jeffrey Sterling, a former CIA officer accused of leaking information to him, opened the conference earlier by saying the Obama administration is “the greatest enemy of press freedom that we have encountered in at least a generation.” The administration wants to “narrow the field of national security reporting,” Risen said, to “create a path for accepted reporting.” Anyone journalist who exceeds those parameters, Risen said, “will be punished.”
The administration’s aggressive prosecutions have created “a de facto Official Secrets Act,” Risen said, and the media has been “too timid” in responding. [Continue reading…]
We know that “high officials” [HO] disclose to the media all the time information that looks like (former) secrets. The word “leak” is used in these cases. but no punishment follows. I wonder if there is a way to learn whether the matters they disclose was ever “classified” as “secret” and, if so, if the proper governmental rigamarolls were gone through to “de-classify” them.
My guess is that when a sufficiently “high” “official” leaks a secret, his action of leaking is generously deemed ( by prosecuting authorities, who have many blind eyes available when needed) to constitute, in and of itself, full and proper “de-classification” or to be adequate proof that proper declassification had already elsewhere occurred. In such a case, no prosecutor would seek to discover whether (in fact) the information had ever been classified, if so by whom, and then and in that case whether the hoops had been gone through to de-classify it.
Selective prosecution for improper leaking of classified secrets thus appears to be one (among many) means by which the club of the powerful hold the 99.99% in line.
Of course, one can imagine a silly, ineffective conversation. Media: “Dear HO, Has this information ever been classified?” HO: “Yes.” Media: “When was it first classified?” HO: “I cannot say, that information is classified” Meia: “Is it classified now?” HO: “No.” Media: “Can you describe to me the process by which it was declassified?” HO: “No, that’s classified.” Media: “Can you provide me with a document which shows this information to have been de-classified, even if it doesn’t explain how or when or by whom it was de-classified?” HO: “Sorry. Stop being a pest.”
Classification-law may sometimes protect vital government secrets but as often protect people in government from having their actions known and understood by the public.