James Goodale knows a thing or two about whistleblowers. As a First Amendment lawyer, he represented the New York Times in the Pentagon Papers case against the Nixon administration and recently wrote about his experience and its implications today in Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles. But what was once an esoteric issue has suddenly inserted itself into the national conversation with the news that the Obama administration secretly seized phone records from the Associated Press and tracked the communication of at least one other reporter while in pursuit of national security leakers.
"The search warrant filed to investigate the Fox News reporter James Rosen proved as many had suspected: President Obama wants to make it a crime for a reporter to talk to a leaker," Goodale wrote today in the Times. "It is a further example of how President Obama will surely pass President Richard Nixon as the worst president ever on issues of national security and press freedom." In an interview with Daily Intelligencer this morning, we asked Goodale to back up his bold claim and if most of America will ever really care.
With the AP and Fox News stories, it seems like Obama's record on leakers is finally becoming a mainstream issue. Why did it take until now?
The press has been very forgiving to Obama with respect to the press issue. Why? I think the press generally likes Obama, as I do, and doesn't want to believe what is right in front of them. They prefer to ignore it. Since the events that I describe in my book that are very unfavorable, they have not attracted huge publicity.
The AP subpoena changed that. Unfortunately, it was combined with the IRS and Benghazi stories, so the spotlight was there. The AP story had a lot of confluence of factors that you probably won't see again — too many things went wrong at the same the time. But now the issue is in play. And when you start looking back at it, it doesn't look really good.
But this isn't new.
It started the first month he was president, with a holdover case from the Bush administration regarding torture. Lawyers sought government records that described the torture, and the DOJ lawyer representing Obama said they were going to resist the disclosure. The judge said something along the lines of "There's been an election, hasn't there?" And the Justice Department said nothing had changed. The president had campaigned on a platform of transparency, but that wasn't the reality.
Is the current outrage sustainable? Or will another, more palatable story come along and leave this again to the margins?
The atmosphere has changed. Any further examples of what we've been talking about [are] going to engage the press's attention. The story is going to be sustained, but we face two factors: (1) There may be time between events, which will dull the press's appetite. (2) We still have a press that really likes Obama and finds it distasteful to write this stuff up. As I find it distasteful to talk about.
A good indicator will be what the press does with the Bradley Manning trial. There are incipient press issues and "Obama, what are you doing?" issues, particularly with reference to the Aiding the Enemy Act. We'll see how that plays out.
How do you explain the importance of these cases to someone who doesn’t follow the minutiae of media?
The AP story was page one in the New York Times. The Rosen story was on page sixteen, because it's harder for the public to understand. You have to place it in a general news environment and not a specific press environment — a good example of that is the AP case. It's easy for the people to understand that if you want information from somebody, you don't have to get it from 100 different reporters and you don't have to do it behind someone's back. With the Rosen case, you need very good explicators.
Why do you think the mainstream press opted not to rally around WikiLeaks and Julian Assange in the way they’re doing with the AP and Fox News now?
The most important reason is that they don't like him. They don't think he's putting in the same effort to preserve the mantle of journalism as they do. They have to hustle all over the place. He gets what they think is a data dump and he's a hero, but he hasn't done anything. They don't like the fact that the information is not subject to any sort of publishing standards. He's free and loose out from the editors and publishers. None of that applies to him. They just don't like him.
Jane Mayer said, "It's a huge impediment to reporting, and so chilling isn't quite strong enough, it's more like freezing the whole process into a standstill." Has there been a decline in the quality of national security reporting?
I don't know, but it's extremely important, and there aren't many people who do it. We've got to support them. This has to chill national security reporting. Your ability to keep sources secret is not going to be possible if the government keeps getting search warrants. If you're subject to a search warrant, why do you even want to be in this business? Luckily, national security reporters tend to be highly courageous, not subject to usual standards of behavior, and they may say, "I'm going to go forward anyway."
What are the practical solutions for reporters, if any?
Shoe-leather. Go meet whoever it is in the park. That's not such a dumb suggestion. Go into a garage as Woodward did. That's probably the best thing you can do. I would never put any of my questions on e-mail. Don't leave a digital trail, although it's very hard not to.
You’ve repeatedly mentioned President Obama in the same breath as President Nixon, with regards to leaks. Can you explain why that comparison is more than just a buzzy talking point?
I want to make it very clear: This is with respect to national security press and leaks. Obama, except that, is a very good First Amendment president. Nixon was a very bad one. My comparison is on the leak front. Since my greatest focus is on the Pentagon Papers, the greatest leak case in history, that's where I'm coming from.
I'm confident that Obama will be looked at as competitive with Nixon. Nixon did the Pentagon Papers case — that makes him the worst. But Nixon only indicted one leaker; Obama has indicted six leakers. Obama has pursued [New York Times reporter James Risen]. Nixon never went into court and got a search warrant against a reporter who "conspired" with a leaker. When we're talking about leakers, we mean the people who leak to the press — now we're talking about the press directly. If we're going to have a domain where members of the press can be pursued for conspiring in leak cases, that's something Nixon tried to do but never succeeded in. Obama has already succeeded. He did it this week.
I had Obama, in baseball terms, half a game out of first behind Nixon. That was at the beginning of this week. At the end of the week, I have him tied and inching ahead.