MEDIA MAY 15, 2013
Since news broke Monday that the Justice Department had secretly accessed the phone records of Associated Press reporters and editors over a two-month period—likely as a result of its anonymously sourced story on a foiled al Qaeda plot to blow up a U.S.-bound plane—no watchwords have gotten more exercise than “chilling effect.” A bevy of lawmakers, such as Sen. Mark Udall, of the Select Committee on Intelligence, and Sen. Richard Blumenthal, of the Judiciary Committee, have invoked the phrase in calling for the DOJ to justify its actions, while pundits have used it to denounce the same actions as unconscionable: “Not only is it chilling, it is stupid,” the National Journal’s Ron Fournier told the hosts of MSNBC's “Morning Joe.”
The AP’s own story on the probe paraphrases an ACLU lawyer saying that journalists may be cowed out of chasing down national security leads in the face of government scrutiny. But does federal overbearance really have a “chilling effect”?
Apparently so. New York Times reporter Eric Lichtblau told me in an email that, after writing a Pulitzer Prize–winning series of stories with James Risen that revealed major clandestine counterterrorism programs under Bush, like warrantless wiretaps, “I heard from various news sources that the FBI had been monitoring my phone and Internet communications with certain people as part of its leak investigation into our NSA story.” Nearly every national security reporter reached Tuesday had a similar story to tell, as do plenty of their peers.
Lichtblau said that subpoena threats from the DOJ were “the trigger” that caused him to quit writing national security stories in the closing days of the Bush administration. “When I initially moved off the Justice Department beat in 2009, part of the thinking there was the threat of the subpoena,” he said, adding to what he’d written in his email: “While the Justice Department never made good on the threat, it certainly made it more difficult to do my job in dealing with confidential sources when you realize you may be forced to testify before a grand jury or risk going to jail to protect a source.” Rather than roll the dice with incoming Attorney General Eric Holder, Lichtblau decided to cover money-and-politics instead.
Prosecutions that treat federal leakers as criminals have increased since then. “Before this revelation on Monday about the AP, there had been six leak prosecutions under Obama by comparison with, depending on how you count, three in all of previous American history,” said Scott Shane, another national security reporter with the Times.
That has unnerved reporters, he and others said, but even more so their sources: national security officials. In fact, it’s hard to call a reporter on this beat who hasn’t felt sources withdraw as the subpoenas and seizures have piled up. “Officials are reluctant to get anywhere close to the line,” Shane said. “Take drones. The official position is that the government cannot confirm or deny the existence of a drone program in Pakistan. But the president has spoken several times, publicly, about the program. Is someone going to get into trouble for talking about it?” Few want to test the limits. “Sometimes they’ll offer some black humor about it. ‘So you want me to be the next person to go to prison?’ But it actually has been much harder to get people to talk about anything, even in a sensitive-but-unclassified area.”
“I remember pointed jokes about being a little anxious in talking to someone who had been scrutinized like that,” said Times reporter Philip Shenon, whose phone records (along with Judith Miller’s) were seized by the government several years after their reporting allegedly tipped off two al Qaeda–linked charities of impending FBI raids. But for the most part, there’s only added difficulty. Shenon, in trying to figure out which of his sources might be investigated by the government, “sat in front of phone records hour after hour after hour after hour … just thinking there was valuable work I could have been doing, reporting other stories, that was being taken away. I was more guarded about when and where I made telephone calls thereafter. Did I always want to use the office phone when it might be better to meet face to face?” Jane Mayer, a national security reporter for the New Yorker, has had a source targeted by the FBI for potential national security violations, and another who feared being targeted. “People reporters need to be able to speak to become legally quarantined, so there’s no way then to get the story,” she wrote in an email. “It’s a huge impediment to reporting, and so chilling isn’t quite strong enough, it’s more like freezing the whole process into a standstill.”
With the magnifying glass on him and Risen (who had his phone records seized by an unknown arm of the Bush administration), Lichtblau said, sources became more recalcitrant, prolonging and complicating reporting on the Swift program, a secret Bush administration tool to sift U.S. bank data in search of terrorism-related activity, and the FBI’s use of national security letters to make broad demands for private phone records. Lichtblau had similar difficulties while reporting his book Bush’s Law: The Remaking of American Justice. In his hours scouring the phone records the government had nabbed, said Shenon, “I really remember thinking at the time, ‘My goodness, if I were one of my sources, I would never talk to me again, even about stories that really would have been a public service.’”
The DOJ’s seizure of AP records will probably only exacerbate these problems. George Freeman, a First Amendment lawyer for Jenner & Block who served as the Times’s legal counsel for 31 years, said that in the wake of Judith Miller’s prosecution and imprisonment, reporters regularly worried to him that sources were growing more reluctant to share information. “Their sources didn’t want to be on the line anymore, potentially losing their jobs,” he said. He guesses the same will be true in this case. Lichtblau figures most reporters will soldier on. “I think you gotta have the stomach for it to begin with,” he said. “It’s a risk you take when you do certain types of stories.” But, he added, reporters’ jobs are not in danger quite like would-be whistleblowers’, and it’s hard to prove a negative—to know the extent of the “chilling.” As Shenon put it, “I’ll never know what I wasn’t told.”
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