Walter Pincus, the law, journalists … and the chilling effect of Obama’s war on whistleblowers

When Walter Pincus — Polk, Emmy, and Pulitzer winner — speaks about the intersection of national security, the First Amendment, and journalism, I listen. So should journalists who reacted as I did to the Department of Justice’s labeling of Fox News reporter James Rosen as a “co-conspirator.”

Pincus, a national security reporter for The Washington Post, led a WashPo commentary with this:

When will journalists take responsibility for what they do without circling the wagons and shouting that the First Amendment is under attack?

Pincus, who received a Georgetown law degree when he was 68, dissected the Rosen case as a lawyer rather than a journalist in his piece bearing the hed Circling the media wagons. He wrote:

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.

Pincus recounts the connections between Rosen and Stephen Jin-Woo Kim, a senior intelligence adviser in the State Department’s Bureau of Verification, Compliance and Implementation, almost hour by hour. Pincus differentiates between whistleblower and criminal act:

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. [emphasis added]

For Pincus, the law clearly supports the DOJ’s decision to label Rosen as a potential criminal. He is, apparently, appalled that the bulk of the journalism community had a knee-jerk reaction to this as yet another threat to the First Amendment. The reaction of the journalism community, he suggested, may mirror the response of the White House Correspondents’ Association:

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.” [emphasis in original]

Pincus is persuasive on the Rosen case as to the law. However …

The law supports the DOJ decision to label journalists such as Rosen “co-conspirators, aiders and abettors or accessories in criminal leak cases.” But that act is a decision — an investigative or prosecutorial decision — made by a human being. In Washington, D.C., such decision are often tinged with the odor of politics. Add to that odor the phrase “national security.” Who defines it has much to do with how investigations are run and interpreted.

Already the DOJ is stepping away from that decision in an attempt to seem more balanced or nuanced in handling such cases. Reported Politico:

The Justice Department began contacting D.C. bureau chiefs of major print and broadcast news organizations yesterday to set up a meeting with Attorney General Eric Holder to discuss changes to the department’s guidelines for subpoenas to news organizations. A source close to Holder said that in retrospect, he regrets the breadth and wording of the investigation involving Fox’s James Rosen (which Holder approved), and recognizes that the subpoena for AP records (Holder had recused himself from that case) took in more phone lines than necessary.

Holder has represented the Obama administration in supporting a federal shield law for journalists:

There should be a shield law with regard to the press’s ability to gather information and to disseminate it. The focus should be on those people who break their oath and put the American people at risk, not reporters who gather this information.

When acts and words differ, believe the acts. In a recent New York Times op-ed, Eyal Press reported on another weapon in the Obama’s war against government employee leaks: a memo that would remove Civil Service protections from whistleblowers. Wrote Press:

Issued on Jan. 25, the memo instructs the director of national intelligence and the Office of Personnel Management to establish standards that would give federal agencies the power to fire employees, without appeal, deemed ineligible to hold “noncritical sensitive” jobs. It means giving them immense power to bypass civil service law, which is the foundation for all whistle-blower rights. … To understand the potential scope of the Jan. 25 memo, consider the case of Berry v. Conyers, involving two low-level Defense Department employees — one an accounting technician, the other a commissary stocker — who were suspended and demoted after their jobs were declared “noncritical sensitive.” The Jan. 25 memo was issued one day after a federal appeals court announced that it would review an earlier decision that went against the employees.

It is clear that President Obama’s first-term pledge to run the most transparent administration in American history has long been unfulfilled. Pincus, who has reported on national security for decades, no doubt knows far more about the tensions between legitimate government concerns for security and attempts to bury government incompetence or outright wrongdoing.

He would have been more persuasive if he had positioned his argument within that context. He could have dealt with the impact of the Rosen case on journalists’ ability to deal with holding government accountable for incompetence or wrongdoing.

The DOJ’s actions — not Holder’s words — have had their intended effect. Journalists’ relationships with government sources have grown much, much colder.

As I wrote before: That what you want, taxpayers?

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