Leak investigations and the right to reportPosted: August 14, 2014
Last night, I moderated a discussion that followed the screening of Silenced, a new documentary that tells the stories of three whistleblowers who exposed torture, mass surveillance and government waste. Directed by Jamies Spione, funded partly by a $40,000-Kickstarter fundraising campaign, and executive-produced by Susan Sarandon, it’s a powerful film that shows how these insiders in the national-security establishment were intimidated and penalized for exposing the abuse of government power.
Their stories are not new. What Spione brought to the screen was the humanity of the whistleblowers and the patriotic idealism that compelled them to work in government agencies like the NSA and the CIA and then to speak out against the excesses they saw there. If anything, Silenced dramatizes how the landscape of government secrecy has changed dramatically since 9/11 and the war on terror. It makes the argument that whistleblowers play an essential role: Leaks are a necessary prophylactic, especially when they reveal the abuse of public authority and the harm done to the rights of citizens.
Investigative journalism is all about uncovering secrets, but no journalist will dispute that governments have the right to keep things under wraps. Secrecy, however, is also prone to abuse. Not all secrecy is justified, and it can be argued that whistleblowers and leakers deserve protection if they disclose important, if secret, information that is in the public interest.
These questions have come to the fore as technology has made leaking easier — the estimated 1.7 million documents that NSA contractor Edward Snowden supposedly has in some hard drives is a good example. At the same time, more advanced tools of email and phone surveillance have enhanced the ability of governments to track the sources of leaks.
Until this month, I thought that the U.S. government’s aggressive pursuit of media leaks was confined to state secrets and national security. But as it turns out, it’s not just the CIA, the National Security Agency or the Justice Department that has gone after unauthorized information disclosures.
One of my former students, Reuters reporter Sarah N. Lynch, was recently the subject of a six-month probe by the Securities and Exchange Commission. In September last year, she wrote two stories revealing what took place in an executive session of the SEC, when the commissioners were deciding on the agency’s settlement with JP Morgan over the “London Whale” trading charges. The sources of the stories were unnamed, and at the behest of the SEC chair, Mary Jo White, the SEC’s Office of the Inspector General launched an inquiry into what it says were unauthorized disclosures of information. Investigators checked the email and phone records of 39 employees, interviewed 53 staff members, including all five commissioners, and examined building access logs scanning for reporters’ names.
In an article published by the Columbia Journalism Review yesterday, I wrote about the probe and similar ones that the SEC has undertaken since the 2008 financial crisis. From semi-annual reports that the OIG has submitted to Congress, I found that in the course of eight investigations of media leaks in the past six years, the SEC had examined some one million emails sent by nearly 300 members of its staff, interviewed some 100 of its own employees and trolled the phone records of scores more. ( A table with details of those investigations is here.)
It’s difficult to figure out what was at stake in what the SEC says were unauthorized disclosures. Certainly not state security. Nor was it the leak of trade secrets or the untimely release of tradable information because the SEC itself has provided nonpublic information to the press in what appears to be an effort to show it was aggressively pursuing wrongdoers in the corporate and financial realms. This double standard – going after “inconvenient” leaks while tolerating or even encouraging beneficial ones – holds particularly true for the national security arena as well.
More perturbing, however, is that it’s often the whistleblowers who are punished, not those whose crimes they exposed. As national-security whistleblower Jesselyn Radack pointed out in yesterday’s panel, only one person has been convicted of torture in the U.S. post-9/11: John Kiriakou, a former CIA analyst who was the first to confirm the use of waterboarding on suspected Al- Qaeda members. Kiriakou went to prison last year for passing classified information to the media.
The SEC, however, operates in what ought to be a far less secretive realm than national security. Its thorough probing of media leaks is disturbing because now, more than ever, financial reporters need wider latitude to report on corporate excess and the government’s efforts to rein it in.
As I said in the piece:
The zealousness of these probes is worrisome. Leak investigations send a chilling message to both journalists and their sources. They can also impede legitimate newsgathering and curtail reporting that seeks to hold government to account.
The SEC is a powerful agency with a big mandate that dates back to the stock market crash of 1929: To protect investors and maintain fair and functioning markets. That role has become even more important since the 2008 financial crisis.
The SEC is the enforcer of the law for the financial sector. Its success or failure in regulating companies and reining in the excesses of financial institutions are matters that concern not just the U.S. public but, given the global contagion that followed the collapse of Lehman Brothers in 2008, also the world.
More, not less, media scrutiny of the SEC would do us all some good… The leaks provide public insight into how the SEC works, even if they do disclose information that may inconvenience the agency.
Last fall, the Committee to Protect Journalists (CPJ) issued a report authored by former Washington Post executive editor Leonard Downie, Jr. that looked into how the Obama Administration’s aggressive prosecution of leaked information was restraining reporting. “In the Obama administration’s Washington, government officials are increasingly afraid to talk to the press,” the CPJ report said. “Those suspected of discussing with reporters anything that the government has classified as secret are subject to investigation, including lie-detector tests and scrutiny of their telephone and e-mail records.”
Next month, the Committee to Protect Journalists is launching a Right to Report campaign asking the administration to prohibit “the hacking and surveillance of journalists and media organizations and to limit aggressive prosecutions that ensnare journalists and intimidate whistleblowers.”
It’s a good name to call a campaign because what’s at stake in these leak investigations is precisely that: The right to report.
(Disclosure: I am on the board of the Committee to Protect Journalists)