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New term to settle Obama legacy on leaks, whistleblowers

President Barack Obama receives the oath of office on Monday. His legacy on transparency is still open to debate. (AP/Carolyn Kaster)

As pundits debate how Barack Obama will tackle guns, climate change, immigration, and the debt ceiling in his newly inaugurated second term, press freedom advocates are left questioning how the U.S. president will handle another, no-less-controversial issue: the treatment of whistleblowers and officials who leak information to the media.

The president's record on this subject has been notably mixed. It started off promisingly enough: on the 2008 campaign trail, candidate Obama voiced broad support for whistleblowers, declaring on his website, "Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled."  Shortly after the inauguration in 2009, the administration stated its goal of being the most "transparent administration in history."

But supporters quickly grew disenchanted, as the government repeatedly invoked executive privilege, fought freedom of information requests, and--most disturbingly to press freedom advocates--aggressively went after whistleblowers who leaked classified information. The Department of Justice has spearheaded six prosecutions of officials charged with leaking information to the press under the 1917 Espionage Act, double the number of all previous administrations combined, according to news reports. While no one has been targeted for publishing leaked material (though Julian Assange maintains he might be), reporters have been subpoenaed to testify, sparking renewed battles on a reporter's right to protect confidential sources. One of the most high profile cases, involving a subpoena for New York Times national security reporter James Risen in a CIA leak probe, is still pending. Meanwhile, press groups and transparency advocates allege that the tendency toward secrecy and whistleblower crackdowns has reached all branches of government, including the Supreme Court and the Food and Drug Administration.

Late last year, after winning re-election, Obama offered an olive branch to his critics when he signed the Whistleblower Protection Enhancement act. The legislation extended protection for government employees who reveal waste, fraud, or abuse within the federal government by closing judicial loopholes, according to news reports, and was hailed by whistleblower advocates, who had been pushing for the measures for over a decade. Obama even issued a Presidential Policy Directive to reverse Congress's decision to exempt national security intelligence officers from the new rules. However, when the president signed another bill which would extend some of these measures to government contractors, reactions were mixed to his accompanying signing statement, which some argued would create a wide loophole in application of the law. (It is worth noting that these laws are meant to protect whistleblowers who denounce abuse within the system, such as to their superiors--not to the media.)

Obama's legacy on this subject will depend on how the legislation is implemented. But it is hard to reconcile the two competing images of the president. On one hand, Angela Canterbury, director of public policy at the Project on Government Oversight, told The Wall Street Journal: "He's done more to affirmatively protect whistleblowers than any other president." (Later, though, Canterbury criticized the president's signing statement with the contractors' bill). The Obama administration has also been lauded for encouraging whistleblowers in the private sector. On the other hand, former CIA agent John Kiriakou, who is scheduled to be sentenced at the end of this month to two and a half years in prison, will be the first official from the agency to serve jail time for leaking classified information. Kiriakou pleaded guilty to leaking the identity of a secret agent allegedly involved in the CIA's covert rendition program to a reporter, who did not publish it.

The distinction comes down to the government's national security concerns, Richard Moberly, a law professor at the University of Nebraska College of Law, told The Wall Street Journal. In the administration's assessment, according to Moberly, a whistleblower is someone who reveals government malfeasance, while an employee who disseminates classified information is a "leaker," in the most pejorative sense of the word. Lucy Dalglish, Dean of the Philip Merrill College of Journalism at the University of Maryland and the former executive director of the Reporters Committee for Freedom of the Press, took this explanation one step further in a segment on Al-Jazeera: "In the eyes of the administration, if you pass classified information to a reporter you are not a whistleblower. You are a felon."

Many blame the administration's tough stance on the fallout from Wikileaks. The government has argued that much of the information that Wikileaks disseminated was not of public interest, and in other leak cases, that it harmed national security. Most journalists and press freedom advocates acknowledge that some information does constitute a security risk and deserves to be classified. But as The New York Times noted, even many government officials acknowledge that too many documents are unnecessarily classified. Moreover, many of the biggest scandals, whether from the Vietnam War or the post-9/11 era, originated with leaked classified documents and detailed abuse that clearly amounted to issues of public interest. As Edward Wasserman, the Knight Foundation professor of journalism ethics at Washington and Lee University, said in the same Al-Jazeera segment, "The distinction between a leaker and a whistleblower is how inconvenient the leak is...it doesn't address the core issues of whether secrecy is being used excessively to keep information that belongs in the public domain away from the public." Many commentators have pointed out that Obama's administration doesn't appear to mind security leaks related to success stories like the Stuxnet worm or the drone attacks "kill list." As the magazine Mother Jones asked, "If the president does it, it's legal?" (Officials, meanwhile, insist there is no war on whistleblowers, merely that leak cases, which previously would have depended on forcing a journalist to testify, have become easier to prosecute in the age of email, according to The New York Times.)

Advocates for whistleblowers have expressed fear that the crackdown on leakers is, perhaps unintentionally, laying the groundwork for prosecutions against journalists under future administrations. Whether or not this is the case, it may be creating a chilling effect in the here and now. In a 2011 blog about online journalism around the world, CPJ's Danny O'Brien wrote that small international online news services "don't get press passes or invitations to press conferences, but they can still pore over official documents and act on whistleblower tips. That makes protecting sources even more important. Intimidation of sources can be the easiest way to threaten or limit the impact of these sites." There is double-speak in the administration repeatedly voicing support for the role of a free press in democracy even as it tries to lock up officials who leak sensitive information to the media--officials upon whom journalists depend to perform that same watchdog role.

On a broader level, a continued crackdown on whistleblowers could be harmful to the United States' image as a defender of press freedom. As CPJ wrote in a 2010 letter to the president and Attorney General Eric Holder urging them not to prosecute Assange, the majority of imprisoned journalists around the world are jailed on anti-state charges, including publishing information that governments deem secret. Historically, CPJ has been proud to point to the United States as a place where journalists may not be jailed because they published something that offends government officials.

While in New York in November to accept CPJ's 2012 Burton Benjamin Memorial Award, Alan Rusbridger, editor of the U.K.'s daily Guardian, told an audience at the Paley Center for Media that, when he and The New York Times's Bill Keller discussed publishing the first batch of Wikileaks documents, Rusbridger said: "We have the memory stick, you have the First Amendment." Later, in his acceptance speech, he said, "In a networked world, [citizens in repressive countries] can use the kind of solid protections you enjoy here in America to publish truths that would be forbidden in their own countries." In his second term, Obama has the opportunity to clarify his record on whistleblowers and make sure the U.S. maintains its image as an example to anyone, anywhere with a memory stick and an injustice to reveal. 

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