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Once and For All, There's No Such Thing as "The War on Whistleblowers" and Here's Why

On Friday night, James Risen of The New York Times appeared as a guest on Real Time with Bill Maher and, among other things, repeated the tired meme that Obama is Worse Than Bush when it comes to press freedom and whistleblowers.
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One of the most tone deaf and unconstitutional things the Obama Justice Department could possibly do would be to imprison reporter James Risen of The New York Times for refusing to testify in an Espionage Act case during which he might be forced to give up his source for a series of articles about a CIA operation targeting Iran's nuclear program. Whatever you might think about so-called "whistleblowers" or "leakers" or whatever label is more appropriately applied, the U.S. government is expressly prohibited from locking up journalists who refuse to rat out their sources, even if those sources provide top secret intelligence for publication.

Yes, there's a possibility that Risen could be tossed in jail for not revealing his source during testimony in the trial of Jeffrey Sterling, a former CIA operative who was indicted under the controversial Espionage Act following an investigation that preceded the Obama presidency (the CIA's Iran operation itself dates back to the Clinton administration). However, given how Risen has yet to be arrested in the six years since his subpoena was handed down, the chances of the current administration imprisoning Risen grows less likely by the day. The renewal of the subpoena in 2010 might simply be a scare tactic without any actual teeth. That being said, jail time would be an unequivocally damning episode in the presidency of a constitutional law professor who promised to turn the tide away from the harsher policies of the previous administration.

But on Friday night, Risen appeared as a guest on Real Time with Bill Maher and, among other things, repeated the tired meme that Obama is Worse Than Bush when it comes to press freedom and whistleblowers.

Bush and Cheney did a lot of the things they did after 9/11, kind of hurried and ad hoc -- the problem with Obama is he's made all those things permanent. And one of the things he's made permanent is this crackdown on whistleblowers, leaks, and he's gone after more whistleblowers than any other president in the history of the United States. Much more than Bush ever did. And it's really difficult to understand why.

It's difficult to maintain any respect for a gifted and tenacious journalist like Risen when he deals in such obvious falsehoods -- and that's putting it generously. First of all, why shouldn't the Justice Department pursue leakers of classified information -- not whistleblowers but actual leakers who dump sensitive top secret national security documents to reporters? We'll circle back to this point.

Secondly, and more importantly, the rest of Risen's statement is shockingly inaccurate. Not only is there no such thing as a deliberate "War on Whistleblowers," but we absolutely know why there have been more investigations by the Obama Justice Department than before. The real story behind these investigations is a matter of record, co-published by Charlie Savage, a highly respected colleague of Risen at The New York Times, and as of this writing, Savage's analysis is totally uncontested, even by civil liberties activists like Glenn Greenwald or even Risen himself. Yet Risen and the others are perfectly comfortable with marketing in this unsupported accusation in order to satisfy an anti-Obama thesis they've been building for more than six years now.

Here again is what Savage and co-author Scott Shane reported in an article titled, "Administration Took Accidental Path to Setting Record for Leak Cases," back in 2012:

But a closer look reveals a surprising conclusion: the crackdown has nothing to do with any directive from the president, even though he is now promoting his record as a political asset.

Instead, it was unplanned, resulting from several leftover investigations from the Bush administration, a proliferation of e-mail and computer audit trails that increasingly can pinpoint reporters’ sources, bipartisan support in Congress for a tougher approach, and a push by the director of national intelligence in 2009 that sharpened the system for tracking disclosures.

Even Mr. Obama’s attorney general, Eric H. Holder Jr., whose Justice Department has pursued five of the six cases, was surprised by news reports pointing out that the number of cases was unprecedented, colleagues said. He has told associates that he has no desire for leak prosecutions to be his legacy.

To accuse the president of actively engaging in a policy of weeding out and jailing whistleblowers/leakers/whatever is entirely contrary to the facts. Worse, for Risen to toss up his hands and say it's "difficult to understand why," when we know precisely why, suggests Risen might be deliberately ignoring Savage's investigation. Then again maybe he legitimately doesn't know why, which case, before he continues to appear on national TV and comport himself as an expert on this topic, perhaps he ought to conduct a simple word search of his own publication's archive.

Now, let's distinguish between whistleblowers and leakers. Whistleblowers expose wrongdoing or illegal activity through proper channels within an organization. To encourage such actions, there are laws, several of which were signed by the current administration, that provide legal and protected avenues for whistleblowers, including the Whistleblower Protection Enhancement Act of 2012 and Presidential Policy Directive 19. Politifact reported last year:

"The Office of Special Counsel now stands for whistleblower rights in a way that it didn't in the past," said Steven Aftergood, who directs the Project on Government Secrecy, a watchdog organization that promotes public oversight.

The last two years have been the most successful in OSC's history in achieving favorable actions for whistleblowers – like the rehiring of a fired employee or the reprimand of a supervisor. For over a decade, OSC counted less than 100 successful favorable actions a year (including an all time low of only 29 in 2007), but in the fiscal year of 2012 they were able to reach 159 favorable actions, and [in 2013] it was 160.

This is worse than Bush? In what universe?

On the other hand, there are leakers. Leakers typically sidestep internal channels and, instead of going through channels, hand over top secret information to reporters. This is clearly illegal, and should be ethically investigated (short of pursuing the reporters themselves, which is both unconstitutional and has a chilling effect on journalism). After all, I thought we were a nation of laws and not men. At least that's what Edward Snowden told us. And the law's the law.

In terms of reporters, there's simply no way the Obama administration has accumulated a worse record than the Bush administration. According to the Committee to Protect Journalists, there haven't been any American journalists jailed inside the U.S. by the Obama DOJ. The Reporters Committee For Freedom of the Press listed the following journalists who were arrested during both the Clinton and Bush administrations:

2006, Josh Wolf, San Francisco, Calif. Freelance video blogger initially jailed for a month when he refused to turn over a video tape that federal officials said contained footage of protesters damaging a police car. Wolf was released on bail on Sept. 1, but an appeals court panel confirmed the contempt order against him and Wolf returned to jail. He was finally released on April 3, 2007.

2005, Judith Miller, Washington, D.C.New York Times reporter jailed for refusing to testify against news sources in the investigation into leaks of a CIA operative's name by White House officials. She spent 85 days in jail, and was released when she agreed to provide limited testimony to the grand jury regarding conversations with vice presidential aide Lewis "Scooter" Libby without revealing her other sources.

2004, Jim Taricani, Providence, R.I. A WJAR television reporter obtained and aired in February 2001 a portion of the videotape showing a Providence city official accepting a bribe from an undercover FBI informant. The tape was sealed evidence in an FBI investigation into corruption by Providence officials, including former Mayor Vincent "Buddy" Cianci Jr. Taricani was subpoenaed, but refused to reveal his source and was found in civil contempt of court. After a failed appeal to the U.S. Court of Appeals in Boston (1st Cir.), NBC, WJAR's network, paid $85,000 in fines. In November, Taricani was found in criminal contempt of court and a month later, was sentence to six months home confinement. He was granted early release after being confined for four months.

2001, Vanessa Leggett, Houston, Texas. Author researching "true crime" book jailed for 168 days by federal judge for refusing to disclose her research and the identities of her sources to a federal grand jury investigating a murder. Leggett was freed only after the term of the grand jury expired. A subsequent grand jury indicted the key suspect in the murder without any need for her testimony. Leggett may again face a subpoena during his murder trial.

2000, Timothy Crews, Red Bluff, Calif.Sacramento Valley Mirror editor and publisher served a five-day sentence for refusing to reveal his confidential sources in a story involving the sale of an allegedly stolen firearm by a state patrol officer.

1996, Bruce Anderson, Ukiah, Calif. Editor of Anderson Valley Independent found in civil contempt, jailed for total of 13 days for refusing to turn over original letter to the editor received from prisoner. After a week, he tried to turn over the letter, but judge refused to believe it was the original because it was typed. After another week, judge finally accepted that the typewritten letter was the original.

1996, David Kidwell, Palm Beach County, Fla.Miami Herald reporter found in criminal contempt, sentenced to 70 days for refusing to testify for prosecution about jailhouse interview. Served 14 days before being released on own recognizance after filing federal habeas corpus petition.

1994, Lisa Abraham, Warren, Ohio. Newspaper reporter jailed from Jan. 19 to February 10, for refusing to testify before a state grand jury about jailhouse interview.

It's also worth noting that the Bush administration detained Al-Haj, a Sudanese cameraman for Al-Jazeera, at Guantanamo Bay.

The record hasn't prevented Risen from declaring that the Obama administration has been "the greatest enemy to press freedom in a generation." This is astonishingly false. Case in point: if this were true, wouldn't have Glenn Greenwald, Laura Poitras and Barton Gellman been jailed a long time ago? Say whatever you will about their veracity or their goals, but there’d be no justification whatsoever for arresting any of the now-famous reporters covering the Snowden beat. Appropriately, not one of the Snowden reporters has been subpoenaed, arrested, indicted or detained. Not one, in spite of the reality that they’ve all moved freely inside the United States for more than a year now (Greenwald most recently during his book tour).

Even if we offer Risen some latitude for living with the threat of imprisonment, there's simply no other rational justification for repeating such broadly inaccurate claims. We therefore have to turn Risen's bewilderment against him and acknowledge that it's really difficult to understand why he's doing it.

Again, there's plenty of time for the Obama administration to prove Risen correct, especially if federal prosecutors opt to toss Risen in jail. But for now, the facts simply do not support his dramatically hyperbolic statements.