When dealing with the scourges of nonfeasance, misfeasance and malfeasance, governments are inclined to behave like tight-knit clans. They’ll accept tough love from insiders, but nobody is allowed to air dirty laundry in public.
Most so-called “whistleblower” laws provide procedures for government employees to alert their supervisors, or someone else in the chain of command, when questionable things occur.
And, sure, that sounds like a good thing.
But the laws usually contain harsh penalties if an employee, acting out of fear, conscience, or spite, passes the damning information to an outsider. To a news reporter, for instance. And that is why the outlook is not bright for those who would follow in the footsteps of Bradley Manning or Edward Snowden.
The news media now have seen the federal government’s war on leakers expand into a battle against journalists. Last week, Karen Kaiser, in-house counsel with the Associated Press, briefed Pacific Northwest editors about fallout from AP’s 2012 disclosure that U.S. agents foiled an “underwear bomb” plot to destroy an airliner.
The Department of Justice went after the leaker forcefully. The source had indirectly tipped off terrorists in Yemen that they had been infiltrated. But the leak also had embarrassed the White House, which recently pronounced al-Qaida as being “out of business” since the killing of Osama bin Laden.
In its determination to get the leaker, the Department of Justice secretly gathered telephone records from about 20 AP journalists, their homes and offices. (Pause for comic relief: DOJ also pulled phone logs for journalists who had not worked for the AP in years and for a switchboard in one office the AP had closed down.)
In short, Kaiser reported, the DOJ conducted an investigation that broke its own internal rules regarding news media. DOJ had sought a sweepingly broad subpoena rather than narrowly focusing its request. And, by acting in secret, it did not give the AP a chance to resist the subpoena.
When the AP learned about the snooping, the DOJ was left scrambling. It agreed to update and strengthen its rules concerning media surveillance. (Existing guidelines are 40 years old and make no mention of email, web sites or mobile phones.) And bills were introduced in Congress to create a federal shield law to protect the confidential relationship between journalists and their sources. The legislation is still alive but progressing slowly.
Our democracy recognizes the need for news organizations to play a watchdog role. As Kaiser told editors last week, journalists shouldn’t be treated as criminals for doing their jobs.