BROOKE GLADSTONE: Army intelligence analyst Bradley Manning is accused of leaking an ocean of classified material to the self-styled whistleblower site, WikiLeaks. It’s the biggest leak of classified documents in U.S. military history. He’s now the subject of the Obama administration’s fourth known leak investigation, a record number for any White House. Shane Harris, senior writer for Washingtonian Magazine, says that despite this president’s expressed commitment to transparency, his White House is uncommonly zealous in its pursuit of leakers. Shane, welcome to On the Media.
SHANE HARRIS: Hi, it’s good to be here. Thanks.
BROOKE GLADSTONE: First off, can you bring us up to date on the investigation of the WikiLeaks leaker?
SHANE HARRIS: If he is found guilty of the charges, he’s going to face the potential of a very, very long prison sentence. Sources I've talked to about this have also said that the FBI could get involved.
BROOKE GLADSTONE: Who else has this White House prosecuted?
SHANE HARRIS: Well, they're currently prosecuting a man named Thomas Drake, who was a senior executive at the National Security Agency, and he is accused of leaking classified information to a reporter named Siobhan Gorman for The Baltimore Sun. They've also successfully got a guilty plea from a former contract linguist for the FBI. Investigators are also currently investigating who leaked information about a CIA operation from many years ago to The New York Times reporter James Risen. Mr. Risen’s actually been subpoenaed now for a second time to appear before a grand jury and to identify his source.
BROOKE GLADSTONE: Is this Justice Department trying to make an example of James Risen?
SHANE HARRIS: He has really made a career on exposing some really sensitive classified operations, so there are people in the career elements of the Justice Department that would very much like to make an example of Mr. Risen. Well, what’s very interesting about this case is that sources told me that the Justice Department and the CIA already know who Risen’s source is, or they believe they know who it is. And what it appears is that the Justice Department wants to get Risen’s testimony anyway to sort of bolster their case.
BROOKE GLADSTONE: And this is where we need to get into some history, because once upon a time the Justice Department placed heavy restrictions on prosecutors who would force journalists to reveal their sources. But in the last decade, several rulings have emboldened the Department of Justice to be far more aggressive in issuing subpoenas even when they don't absolutely need them. So what changed?
SHANE HARRIS: Well, there were two sort of pivotal events. One were the 9/11 attacks, which took an administration that was already bordering on obsessive about secrecy and really pushed it over the edge to say any information that could potentially jeopardize the war has to be dealt with very harshly. A couple of years later, in 2003, an appellate court judge who was an expert on intelligence matters, named Richard Posner, handed down an opinion in a leaks-related case in which he effectively undid the strategy that for the past 30 years journalists had been using to avoid having to testify before grand juries.
BROOKE GLADSTONE: A sort of implicit reporter’s privilege that was derived from an earlier case, Branzburg v. Hayes, that actually went against the reporters but nevertheless left open the possible interpretation that reporters did have a kind of privilege that the average citizen did not. And Richard Posner said that’s not the case. Reporters are worthy of no more protection than anybody else.
SHANE HARRIS: That’s right, and so really, this very creative defense that media attorneys had been using for the past 30 years was effectively shattered. And I think that the floodgates kind of opened at this point.
BROOKE GLADSTONE: And through the floodgates came the Valerie Plame case and the BALCO case, both of which you say were really important precedents for what’s going on now.
SHANE HARRIS: The outcome of that Valerie Plame case was that journalists had to testify before a grand jury about their sources if there was a crime involved. And in this case it was the potential crime of identifying a CIA operative. The BALCO case also demonstrated that prosecutors would go after journalists for reporting grand jury information. This was a case that did not involve national security. It involved illegal steroid use by baseball players. And two reporters for The San Francisco Chronicle got a hold of grand jury testimony and reported it, and then they were subpoenaed to say who told you this grand jury testimony. You saw this expansion of the subpoena power in a way that went far beyond anything that had been contemplated, I think, in the Justice Department’s own rules, and there were very few protections left for journalists who wanted to avoid having to identify their sources in court.
BROOKE GLADSTONE: So what do you think are the President’s motives for taking such a hard line against leakers?
SHANE HARRIS: I think that there is a real desire on the part of this administration to satisfy the instincts of the career professionals in the intelligence community to get tough on leakers. It’s well known that President Obama despises leaks. He thinks that it represents all that is bad about Washington. He thinks that they're petty. For Obama, what a wonderful confluence he has here now – his own distaste and disdain for leaking that coincides with this great desire on the part of the career class in government to finally get tough on leakers.
BROOKE GLADSTONE: And yet, in his own statements, he has said over and over again that the point of transparency is to hold the government accountable.
SHANE HARRIS: And if you look at the case of Thomas Drake, who is facing trial for leaking classified information about a hugely wasteful and inefficient government program, this is somebody who actually went through all the proper channels. He notified the various intelligence committees. And the narrative that has come out so far seems to suggest that no one really listened to him and that he felt that the only way that he was going to shine a spotlight on this enormous waste of [LAUGHS] taxpayer money was by going to a reporter. I mean, he really does fit the classic definition of a whistleblower. And these are the kinds of transparency moves that Obama has said that he wants.
BROOKE GLADSTONE: Right now there are shield laws in Congress before both houses that would balance public safety and national security with the reporters’ privilege to protect their sources. But in the wake of WikiLeaks, the uh Senate is drafting some changes to its bill.
SHANE HARRIS: The Senate wants to insert language that would draw a line between traditional journalists, what we really understand as people who are engaged in journalism and the media, and sites like WikiLeaks that tend to indiscriminately publish information without vetting it, without reporting on it, without trying to get both sides of the story.
BROOKE GLADSTONE: There are some people who think that perhaps this whole WikiLeaks thing will actually strengthen the case for journalists.
SHANE HARRIS: That sort of bolsters the case [LAUGHS] in a sort of indirect way for having a press shield law, because it’s essentially arguing, hey, reporters are being responsible. When they get classified information, they go to the government agencies involved. They say, would you like to comment and, very importantly, they say, is there anything here we should not publish because it could harm national security?
BROOKE GLADSTONE: Shane, thank you so much.
SHANE HARRIS: It’s a pleasure. Thanks.
BROOKE GLADSTONE: Shane Harris is a senior writer for Washingtonian Magazine.