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Reporters under siege

A Znewz1 report -- with commentary -- by Paul Conant

About Znewz1
Reporters Committee for Freedom of the Press
Electronic Frontier Foundation's Indymedia report
Psyops and the press (by Conant)
Conant to Reporters Committee for Freedom of the Press
The MI6 affray: who are the press?
Roping off pardon news
Fox News: trumpet of Israel's hard right
Psychotronic mind games
Secrecy News, a periodical of the Federation of American Scientists
Journalists push for Massachussets shield law
Scientist subpoenas news outlets on anthrax leaks

DECEMBER, 2004--In the post-9/11 world, reporters find themselves under intense pressure to cease conveying news that does not fit the official mold.

Reporters are being hounded to expose sources or go to jail as never before, media organizations face seizure of files, notes and other data, the Pentagon is blurring the line between news and psychological warfare, government secrecy is ballooning, and the heavy hand of the FCC is posing an indirect effect on broadcast news.

Federal prosecutors, seemingly zealous to punish leakers, are increasingly likely to penalize the press.

Of course, most of the attacks on press confidentiality are unrelated to terrorism, and even in those where national security is cited, the underlying issue seems to be political.

The real pressure is on the working press, the people who actually gather news, as opposed to the giant corporations that dominate so much of the news media. The investors who control these organizations tend not to be terribly concerned about press freedom, as long as the money is coming in.

A review of the Reporters Committee for Freedom of the Press web site shows a disturbing pattern. Among the highest profile free-press cases:

The outing of Plame

A federal appellate court is considering the contempt sentences of Judith Miller of the New York Times and Matthew Cooper of Time magazine for refusing to disclose the source of a report that Valerie Plame, wife of White House nemesis Joseph C. Wilson IV, was a CIA operative.

The special prosecutor, Patrick Fitzgerald, unveiled a new technique in which he asked officials to sign a statement waiving any confidentiality agreement between the official and reporters. Reporters tend to view the waiver as non-valid because not signing such a document would immediately jeopardize the official's position.

Nevertheless, some reporters, such as Walter Pincus of the Washington Post, agreed to testify based in part on the waiver, though it does not appear that the testimony substantially compromised the source.

Others pressured to testify on their sources were Glenn Kessler of the Washington Post, Tim Russert of NBC and Robert Novak, the conservative columnist who first exposed Plame's identity in July 2003 as part of a campaign to run interference for administration hawks, who were badly embarrassed by Wilson's debunking of White House rhetoric on Iraq's alleged nuclear program.

A critic of the administration, Sen. Charles E. Schumer, D-N.Y., made the point that the exposure of Plame's identity by a public official was an apparent violation of law, and an outcry went up to punish the leaker.<> But, so far, it is only reporters who face punishment.

The CIA also had a role in the outing of Plame. When Novak and others asked a CIA media relations official whether Plame was indeed a CIA employee, the CIA official confirmed the leak. Yet, there was no call for punishment of CIA officials for lawbreaking. This no doubt stems from a cozy arrangement whereby selected reporters can "run something by" the CIA. A reporter who wasn't high on the Washington cocktail circuit invite list would very likely have been met with: "We don't comment on, nor confirm or deny, undercover personnel matters."

TV reporter confined

Fitzgerald's novel "confidentiality waiver" was picked up by another special prosecutor appointed to determine the source of a videotape aired on WJAR-TV that shows a former Providence, R.I., official taking a bribe in an FBI sting operation.

The reporter, Jim Taricani, was sentenced to six months' home confinement Dec. 9 for refusing to disclose his source to investigators. However, it appears that Taricani, a heart patient, had inadvertently disclosed his source, Joseph Bevilaqua, a lawyer, when Taricani said he did not believe the source had voluntarily waived a confidentiality agreement. There being only one such agreement at issue, the counsel deduced the source and was able to compel him to admit his role.

Waivers ordered in anthrax suit

The confidentiality waiver is catching on. U.S. District Judge Reggie B. Walton has ordered federal prosecutors, FBI agents and other federal employees involved in the inquiry into the 2001 anthrax attacks to sign broad waivers of any confidentiality agreements they have with reporters, Newsweek has reported.

Former Army researcher Steven J. Hatfill is suing Attorney General John Ashcroft and other officials for publicly naming him as a "person of interest" and for leaking information about him.

Hatfill's libel suit against the New York Times and columnist Nicholas Kristof was dismissed in federal court, but this ruling does not affect the other suit.

The problem with confidentiality waivers is that if a person refuses to sign, she is in a position similar to a witness forced to take the stand in order to exercise a Fifth Amendment right not to testify. The act of refusal invites suspicion, whether warranted or not.

Also, the only point of the waiver is for use in applying pressure on the reporter to reveal his source. Yet, if the leaker was really signing in good faith, rather than under coercion, she would be prepared to volunteer her status as leaker and there would be no need for further inquiry.

Sports doping furor

In California, stories detailing grand jury testimony in a sports doping case prompted U.S. Attorney Kevin V. Ryan to request a Justice Department investigation of the leaks, with the probability that lawyers and others will be expected to sign confidentiality waivers.

Ryan's request followed published reports disclosing that New York Yankee Jason Giambi had secretly testified that he had injected himself with human growth hormone last year and had also been using steroids. Giambi's grand jury testimony contradicted his public statements.

After repeated leaks of confidential information about earlier phases of the sports drug investigation, federal prosecutors asked five reporters -- Sean Webby and Elliot Almond of the San Jose Mercury News, and Henry Lee, Lance Williams and Mark Fainaru-Wada of the San Francisco Chronicle -- to return leaked materials and disclose their confidential sources. All declined and, thus far, no subpoenas have been served.

Jonathan Donellan, a lawyer for Hearst Corp., which owns the Chronicle, said that if prosecutors pursued the newspaper, it "would be the first time we know of in history that a United States attorney in California sought to compel a news organization to disclose its confidential sources."

The Wen Ho Lee imbroglio

In 2000, Wen Ho Lee, a former nuclear physicist at the Los Alamos National Laboratory in New Mexico, sued the federal Energy and Justice departments for disclosing private information about him without his consent. Lee sought the identities of the confidential sources of the reporters who had written about him and a since-dropped nuclear espionage investigation.

In October 2003, a federal judge ordered five reporters -- James Risen and Jeff Gerth of the New York Times, Bob Drogin of the Los Angeles Times, Pierre Thomas, formerly of CNN and now with ABC News, and H. Josef Hebert of the Associated Press -- to reveal their confidential sources.

They refused and in August 2004 each was ordered to pay a $500-per-day fine. The matter is before an appellate court.

Military attorney subpoenas reporter

In Colorado, the Denver Post and reporter Miles Moffeit are fighting a subpoena from a U.S. Air Force court for notes of interviews with an enlisted woman who says she was gang-raped.

Military lawyers want the notes and other documents in order to assist the defense of Airman Matthew Monroe, who is charged in the matter.

The subpoena arose after a Moffeit story ran with the headline, "Delays on rape-case evidence bring new scrutiny to military."

Moffeit says that he assured the woman, Leah Kaelin, that he would not disclose anything she told him without her express permission. He said the information he is withholding is of a highly confidential, emotional nature.

Phone records targeted

Among records prosecutors find most useful are phone records of reporters, which might easily disclose the identity of a confidential source.

As U.S. attorney in Chicago, Patrick Fitzgerald asked the Justice Department in 2003 to grant him permission to subpoena the phone records of two New York Times reporters, Philip Shenon and Judith Miller, as part of his investigation of a leak in what was called a terror-related matter.

Fitzgerald's request was denied, but, having been appointed special prosecutor in the Plame matter, he issued the subpeonas anyway in September 2004.

The Times challenged Fitzgerald in court, but at last report it was unknown whether Fitzgerald had seized the records.

The grand jury investigation into the leak occurred after Shenon called Global Relief Foundation to inquire about a federal raid he had heard about, it has been reported. But the raid did not occur until the next day, giving charity officials time to destroy evidence, according to reports.

The issue of telephone information reminds this reporter of the late 1980s when a New Jersey prosecutor would apparently contact phone companies to tell them to de-list certain listed phone numbers. Relevant phone books were out of reach, something he could have surmised. The prosecutor was aware of media interest, and took the precaution of shutting off "directory assistance," even though it is unlikely he sought a court order.

A lawyer's 'terrorism' trial

In another terrorism matter, four reporters were subpoened to testify at the trial of Lynne Stewart, a lawyer charged with aiding terrorism by publicizing a militant statement from her client, Omar Abdel Rahman, against court orders in 2000. Esmat Salaheddin of Reuters took the witness stand in September 2004 to say that Stewart had told him of Rahman's statement without a confidentiality agreement. Prosecutors then decided against calling Patricia Hurtado of Newsday, and Joseph Fried and George Packer, both working for the New York Times.

A gubernatorial gag order

Pressure tactics against reporters are found not only at the federal level. In Maryland, the Baltimore Sun is asking a federal judge to overturn the governor's order that forbids state employees from speaking with Sun journalists David Nitkin and Michael Olesker.

In November 2004, Gov. Robert L. Ehrlich's office ordered all state public information officers and members of the governor's staff to avoid returning phone calls or complying with any requests by Nitkin, the statehouse bureau chief, and Olesker, a columnist who writes about state affairs.

The paper suggests that Ehrlich was angered by a story about a land transaction.

The governor's order is working, according to Nitkin, who said that he has been frozen out of regular contacts with state officials.

The Indymedia shutdown

The FBI's role in shutting down Indymedia, a non-corporate internet media cooperative, raises troubling questions.

Subjectively, it seems fairly certain that if Indymedia had been a major corporate-chartered news organization, the Justice Department would have found a way out of honoring a foreign request for data from the news organization's internet server.

But what of the heavy-handed tactics against reporters for big-league media concerns? The answer is that the attacks are against the working press and anyone of a journalistic bent who is not high on the invite list of the moneymen.

In the Indymedia matter, it hardly seems coincidental that the intrusion into Indymedia's First Amendment rights came two weeks after an FBI dispute with Indymedia about photos published on the net.

The Electronic Frontier Foundation, which is representing Indymedia interests, provided information for the following account:

On Oct. 7, 2004, more than 20 Independent Media Center (IMC) web sites and other internet services were taken offline pursuant to a secret U.S. government order. The Indymedia sites, based in the United States and around the world, provide independent journalists a public outlet. The IMC sites are affilaiated via a global cooperative known as Indymedia.

[Much of the impetus for the cooperative came from activists interested in countering "globalization" trends by major governments and corporations. Some of their demonstrations have been marred by violent persons.]

Rackspace Managed Hosting, the firm which provides Indymedia's net servers, was served with a federal subpoena under a provision of the Mutual Legal Assistance Treaty.

As a result, Rackspace, which is based in San Antonio though its offices are in London, shut off internet service so that it could comply with a demand for stored data. Rackspace would not provide a copy of the seizure order nor discuss its contents, nor disclose a contact name, saying the order was sealed.

The FBI said it had nothing to do with a probe of Indymedia and was only acting at the request of an undisclosed foreign law enforcement agency.

On Oct. 13, an Italian prosecutor, Morena Plazzi, admitted seeking Internet Protocol address logs from Indymedia under the foreign assistance treaty, but denied seeking seizure of server hardware.

In London, it was unclear what role British authorities had in the seizure. An investigation was launched into whether Rackspace had been evading new internet control laws by taking advantage of America's free-speech safeguards.

On Sept. 22, the FBI contacted the U.S.-based Rackspace about an Indymedia photo showing the faces of Swiss undercover agents at a globalization rally and then followed up with a visit to Devin Theriot-Orr, the registered agent for the Seattle Independent Media Center.

Eventually, the Nantes (Switzerland) IMC decided to blur the faces of the officers.

It appears that the FBI is being used to help European authorities to circumvent the U.S. First Amendment.

Ballooning government secrecy

As the old saying goes, "knowledge is power."

Knowledge in the hands of terrorists is, of course, a dangerous thing.

The problem for America is that ours is an information-driven country. The "land of opportunity" thrives in an atmosphere of easy access to knowledge. Perhaps one of the biggest influences on modern America was the free public library movement, which made a great deal of information available to anyone.

Many of our best scientists came from humble origins, but made the most of the opportunities provided by ease of access to knowledge.

But now, under the spell of the "war on terror," government bureaucrats and legislators are blanking out vast tracts of data that one would reasonably expect would be available for public inspection.

A bizarre example comes from Scripps Howard News Service. A December 2004 story tells of Helen Chenoweth-Hage, a former Idaho congresswoman who was prevented from boarding an aircraft after she asked to see the regulation authorizing Transportation Security Administration guards to pat her down at the airport gate.

She was told she could not read the directive because it was confidential information. She saw the refusal as a case of "secret law" but the TSA said it didn't want terrorists to know "standard operating procedure."

A recent issue of Secrecy News, edited by Steve Aftergood of the Federation of American Scientists, reports that the CIA has been removing previously public documents from the National Archives, claiming that they had never been properly declassified. Conceivably, writers who have seen "not properly declassified" materials in the archives, or even in federal depository libraries, might face secret orders confiscating the materials and enjoining them from publication.

The American Civil Liberties Union, in its efforts to discover how the Patriot Act was being applied, found itself subject to federal gag orders "suppressing even innocuous, non-sensitive information." The ACLU said the government is "refusing to tell the public how it uses these extradordinary new powers, even in the most general terms" while it gags the ACLU and others "from speaking freely about our legal challenges."

Now if the ACLU can be gagged, can we in the near future expect orders from federal officials prohibiting news organizations from reporting leaked information about some Patriot Act maneuver?

The ACLU finds that the intelligence reform bill passed by Congress earlier this month poses numerous problems for the rights of Americans.

A number of journalism organizations -- not the corporate ones -- criticized the bill over language that would further erode public access to government information.

A disconcerting power granted the new national intelligence director is "authority to direct or undertake electronic search operations pursuant to FISA [Foreign Intelligence Surveillance Act] or executive order." Hence, forget the Fourth Amendment. Here we see where reporter records and sources could easily be investigated with no real oversight.

As someone who wrote on Americans missing in action and on other thorny issues, this reporter can assure the reader that government surveillance and unacknowledged searches have long been routine. Once a member of the press attracts the attention of powerful interests in Washington, there is little let-up in surveillance and "black bag" break-ins.

In this reporter's case, the powerful interests interceded with the corporate media owners in order to forestall any support from mainstream media. Members of the working press, no matter how much some may empathize with this reporter, have been blockaded from taking any initiative. Though this reporter was employed by Newhouse Newspapers, the media group took the lawyer-like position that since this reporter's controversial work had been done as a freelancer, it need not intervene and expose the continued aggressive surveillance.

Other members of the press, cut loose from the corporate media, have reported comparable indignities. However, now the climate of intimidation has reached a point where any reporter or editor must wonder whether he will face similar measures for failing to consult the government on what he should write.

News or psy-ops?

Now that the United States is at war, shouldn't the press "support the war effort" or, that is, "support our troops"?

Isn't it a matter of "us against them"? Surely that's the view of the cynical, manipulative Murdoch media. But if reporters become mostly agents for a government information war, are they really doing the country a service?

The many honest efforts to ferret out the news in the face of the hostility of the government and of its ideological supporters in the media are highly laudable. Yet there is no denying the great pressure on journalists to meekly play along.

In particular, war news is a place where the truth is likely to be a casualty. In the recent fighting in Fallujah, massive civilian casualties were termed "unconfirmed" by American reporters on the scene. Reporters felt they could not confirm the claims of bona-fide observer groups because they were prevented from being physically present. The American reporters were being cautious after the the previous Fallujah battle in April when the Pentagon claimed that the general hospital had become the center of an anti-American propaganda operation.

But, why should the Pentagon be believed?

The Los Angeles Times reported on Dec. 1, 2004, that the U.S. military used a CNN reporter as part of a subterfuge prior to the second attack on Fallujah.

On Oct. 14, Marine Lieutenant Lyle Gilbert took to the airwaves to tell reporter Jamie McIntyre that the attack on Fallujah had begun, when, in fact, it was not to be launched until three weeks later.

The purpose of the ruse, the Times said, was to provoke insurgents into disclosing their tactics prior to the real attack. Though one can defend the military's thinking here, CNN's credibility as a source of objective information has been weakened. Clearly, the credibility of military spokesmen is also damaged.

And that cedibility may deteriorate further, both for the Pentagon and perhaps for the press. The New York Times reported Dec. 13, 2004, that the Pentagon is "engaged in a bitter, high-level debate over how far it can go and should go in manipulating information to influence opinion abroad."

Such missions, if approved, could take the deception operations used on a battlefield to confuse the enemy and adopt them for covert psychological warfare operations aimed at neutral and even allied nations, the Times said.

One might observe that just such techniques were employed against America by the White House, Pentagon and CIA in efforts to persuade Americans that war was necessary to take out Saddam's alleged weapons of mass destruction. Unfortunately, much of the media -- led perhaps by Murdoch's Fox News -- agreed to play the game.

FCC intimidation

Journalists who work for media concerns that include broadcast entities are highly vulnerable to corporate self-censorship.

Suppose you are a big-league investor mostly interested in corporate profit and your position among the oligarchs (Russia isn't the only country with oligarchs) and not terribly concerned about the First Amendment. You know that the FCC may rock your boat with a nasty fine over some shock jock's vulgarity or some entertainer's sexy behavior.

What is your response? Perhaps it is only to curtail the "foul" language and exhibitionism. But, it may well be that you signal your managers to be careful about offending the administration, whose appointees hold sway at the FCC.

You may be unwilling to emulate the Philadelphia Inquirer and run a courageous piece by mathematician John Allen Paulos questioning Bush's reputed victory. This anxiety and tepidness may spill over into the news operations, both broadcast and print.

Perhaps inexpensive blocking devices are a better answer -- though of course the big fines for "indecency" went over well with a core group of Bush supporters in the run-up to the election.