Dropboxes. Disposable cell phones. Encryption technology. Is this what American journalism has come to?
James Goodale, the former New York Times general counsel who ran the Pentagon Papers case in 1971, says that the Justice Department's secret seizure of reporters' phone and email records and its use of official press passes to track reporters' movements in government buildings make President Obama's record on press freedom worse than President Richard Nixon's.
But we live in a very different, far more dangerous time than the America of Watergate. Protecting the nation post-9/11, when the world's worst people seek to obtain the world's worst weapons, means taking aggressive measures.
The fact that terrorists have not succeeded in staging a WMD strike does not mean they have given up trying. And blowing the cover of agents and other sources, even inadvertently, who have infiltrated Al Qaeda in Yemen or brutal regimes undermines our national security.
Obama is right to be alarmed by that danger and, yes, to rely on some of the same methods invoked by his predecessors, to keep Americans secure. There may also be a long-term need to recalibrate the balance between freedom of the press and national security in such a world. But a secret war on journalism is the wrong approach. This needs to be done with eyes wide open, with a robust public and legal debate about executive power and its consequences.
On its face, the Justice Department's seizure of months of records across 20 Associated Press phone lines was an overreach. The AP, after all, had delayed publishing the story in question for five days at the government's request to avoid endangering national security.
Even worse, it now appears, is the department's argument that Fox News reporter James Rosen was "aiding and abetting" the violation of the Espionage Act of 1917 by "soliciting" news. That led to the department secretly seizing not only his phone records and emails, but the phone records of many others at Fox.
The department's seizure was prompted by a 2009 article Rosen wrote. The CIA, he disclosed, relying on sources inside North Korea, expected the regime to respond to a UN Security Council resolution criticizing its nuclear program by testing another bomb. Suspicion focused on an intelligence analyst on loan to the State Department, who was subsequently charged with the leak, which he has denied.
The astonishing government affidavit accuses Rosen of being an "aider, abettor and/or co-conspirator," with the source in violating the Espionage Act by arranging a private way of communicating, adopting aliases and "soliciting" the information.
But the Espionage Act requires that the leak "is to be used to the injury of the United States." What was Rosen's motive? "Let's break some news and expose muddleheaded policy when we see it," Rosen wrote his alleged source, according to the affidavit. Sounds like journalism to me.
It remains unclear, moreover, whether either story compromised national security, as the government alleges. Were the ongoing intelligence operation in Yemen and the British-Saudi agent allegedly involved blown by The AP, which didn't mention an agent at all?
Or was it harmed by briefings by then-counterterrorism adviser John Brennan and other top officials who spoke about the plot being "under control"? Did Rosen's story compromise a human source within the notoriously paranoid North Korean regime? Or could the "sources" inside North Korea that Rosen referred to, after withholding information he feared could harm national security, have been an allusion to "signals intelligence" or the many other well-known ways in which U.S. agencies collect information in closed states?
It's not easy to strike a balance between the need to safeguard classified information and the constitutional imperative to allow "unfettered" freedom of the press. The challenge has been with us for centuries and will challenge us long after Obama. But history urges caution about letting Presidents or Justice Departments strike that balance unilaterally or in the dark.
Obama's top aides — like their predecessors — have had few qualms about leaking classified information that makes them look good. Remember their detailed briefings on the killing of Osama Bin Laden? Back then, the crowing got so out of hand that then-Defense Secretary Robert Gates had to counsel his fellow senior officials to "shut . . . up."
No President should be trusted to be disinterested in striking the balance between security and freedom. Ceding to him alone that authority means that Americans will get only the leaks a White House wants us to have. And that risks us winding up with neither security nor a free press.