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PAUL JAY: Welcome to The Real News Network. I'm Paul Jay in Baltimore.
The Obama administration's seizure of phone records of Associated Press is clearly a message,
first of all, to whistleblowers. If we can go after AP, we can go after anybody. And
whoever you might phone, we can get hold of those records. And, of course, if they can
go after AP, they can go after any journalist, so it's also a message to journalists across
the country.
Now joining us to talk about all of this is Kathleen McClellan. She's a national security
and human rights counsel at the Government Accountability Project, a leading whistleblower
rights organization in D.C.
Thanks for joining us, Kathleen.
KATHLEEN MCCLELLAN: Thanks for having me.
JAY: So, first of all, how do you think this will affect whistleblowers? You as an organization
and you as counsel have represented some whistleblowers. Perhaps you can tell us a bit about that.
And what does this do to the next person thinking about picking up the phone and calling the
press?
MCCLELLAN: Well, the Obama administration's unprecedented attack on whistleblowers and
on the media by using the Espionage Act to indict people for alleged leaking of classified
information, which is almost always actually whistleblowing, has already had a tremendous
chilling effect on both whistleblowers and on the media. National security whistleblowers
have next to no legal protections as it is. And now not only do they have to worry about
all of the normal retaliation and the career suicide that whistleblowing can be for national
security employees; they have to worry about being criminally prosecuted for disclosing
waste, fraud, abuse, and government illegalities. And the journalists now have to worry about
the same sort of accusations.
JAY: So I guess the argument you would get from the Obama administration would be we
have a right to defend national security, we have a right to national secrets, and there
is a process internally to do all of these things if you want to complain. So what's
wrong with that argument?
MCCLELLAN: Well, in the case of Thomas Drake, the National Security Agency whistleblower
who is a client of ours at GAP, he went through all of those proper internal channels. He
went to the Department of Defense inspector general. He went to the Senate and House intelligence
committees. And that did not protect him. And, in fact, it made him a target. And he
and the other people at the National Security Agency, his fellow whistleblowers who complained
about waste, massive, billion-dollar boondoggle type waste at the National Security Agency
and unconstitutional domestic spying, they were all targeted with a federal criminal
investigation.
And it turned out that despite the government's claims that Mr. Drake had put lives at risk
and endangered soldiers on the field, despite those claims that the government made in his
case, none of the information that he was accused of improperly retaining was actually
properly classified. So while the government will consistently assert that it's national
security at play, oftentimes it's the fact that the government wants to hide embarrassing
or illegal conduct.
JAY: And what about when they're national security issues? I mean, if you take something
like the Bradley Manning leak, that he leaked to WikiLeaks, they're certainly arguing that
those are national security issues, and they're saying the revelations jeopardize security
in some way--I'm not sure they've actually given any proof or evidence how it did, but
one supposes they could try to make that argument. Do you think there should be some kind of
limits on when someone can leak and what the press should do with it?
MCCLELLAN: Well, absolutely there's properly classified information. And the regulations
and the statutes that govern classified information define it pretty well. The problem is everybody
in government is incentivized to classify, but they're not incentivized to declassify
or to not classify. And so there's rampant overclassification plaguing the system.
Of course there are things that should be secret. The problem is the temptation to classify
things that are embarrassing or that cover up misconduct is too great, and the consequences
for overclassifying are nothing. There are no consequences, really, for overclassifying,
despite the fact that government regulations require consequences for overclassifying,
just like they require consequences for failing to classify or disclosing classified information.
JAY: I should add to the Bradley Manning comment I made that I think it is as many as 3 million
people had access to the same information Bradley Manning had access to. So if you really
want any of that to be secret, you don't put it on a network that 3 million people can
get at.
MCCLELLAN: It's true. And is it a secret if you can share it with a million people?
JAY: So let's go back to the AP case. Apparently, the Department of Justice actually violated
their own guidelines on the AP. They didn't--they are--supposedly need to negotiate with a news
agency before they take measures like seizing things, they're supposed to notify the news
agency that they're doing it, and they didn't. Why do you think in this case they were--actually
went beyond their own guidelines?
MCCLELLAN: Well, I think that if the Justice Department had gone to the AP and negotiated
like they were supposed to--the AP held the story in question, so it's not as though the
AP wasn't willing to talk, it seems. But I think as far as notifying the AP that they
were going to subpoena such a broad range of records, 20 phone lines, I think the president,
the CEO of AP has said over 100 journalists use those lines. The AP would have had an
opportunity to go to court to fight to quash that subpoena. With such a broad record--broad
range of records being requested, I would think that--I would suspect that the AP might
have done--have chosen to go to court to quash that subpoena. But by going around the regulation,
the Justice Department denied AP that opportunity, and the records were turned over already.
Why the Justice Department decided to ignore their regulation I think remains to be seen.
JAY: Yeah. I mean, it seems--I mean, you can't go after AP without sitting and having a conversation
in a room, saying, you know, if we're going after AP, it's, like, one of the leading news
organizations in the country, it's going to be news everywhere, eventually this has to
come out, although AP found out about it, what, two months later. You know, you don't
do this unconsciously, go after such a news organization with such a high profile. So
they wanted to send this message that they would go after this and in this way, no?
MCCLELLAN: I think it definitely does send a message. I mean, whether or not they wanted
to send a message or not is--you know, the administration seems to say when it's convenient
that it's not a policy of a crackdown on leakers or on whistleblowers. It's just individual
cases. But then when they want to send a message and they want to keep people quiet, they tout
these prosecutions, and when they want to sound tough on national security, they tout
it. And with Espionage Act prosecutions, whistleblowing was effectively criminalized. And now with
the AP and with the latest development in the Stephen Kim case, another Espionage Act
case, where the government actually accused a reporter of violating the Espionage Act
simply because he was reporting the news, the news gathering process is being criminalized.
JAY: Yeah, explain more about the details of that.
MCCLELLAN: Well, the Stephen Kim case--Stephen Kim is another individual who's been accused
of violating the Espionage Act. And in that case, the Justice Department sought a warrant
based upon what they call probable cause that the reporter who--that Kim had been alleged
to have contact with was violating the Espionage Act because he was somehow soliciting or encouraging
the disclosure of classified information.
That's essentially what all national security reporters do every day. That's the news gathering
process. They ask sources for information. And with so much information classified, I
think last--in the fiscal year 2011 alone, the government made some over 90 million decisions
to classify something. With so much information classified, that's a lot of risk to journalists.
And classified information, not only do journalists request it every day, but it appears in the
paper every day, and the government is the biggest leaker of all in disclosing that classified
information. So when you have the Justice Department going to a court and saying there's
probable cause to believe that a reporter is committing espionage by reporting allegedly
classified information, that essentially is going to criminalize the news gathering process.
And so now, you know, with whistleblowers being prosecuted, whistleblowing is being
criminalized, and now the news gathering process is being criminalized. And the chilling effect
has already been felt. And with each new development, it just seems to get more and more severe
retaliation and more and more severe consequences for reporting the news.
JAY: Now, some people have been making criticism of sorts that a lot of the sort of liberal
NGOs, organizations, liberals in the news media have been kind of soft on Obama up until
this point, in the sense that the NDAA, for example, that was passed that allows the military
to indefinitely intern people that are accused of somehow aiding or having something to do
with the Taliban or al-Qaeda essentially waiving any rights to trial and other types of measures
that have been passed under the Obama administration have not received as much attention as many
people think they would have if it had been a Bush administration, for example. Now people
are raising their voices more 'cause it's AP and they're directly going after news media.
But do you think there's some--it's fair, that critique, that a lot of voices have been
quiet up until now about what President Obama's been doing?
MCCLELLAN: There have been quiet voices. And I think, you know, some former Bush administration
officials were quoted as saying, well, we'd never be able to get away with this.
That said, there have been a lot of voices speaking out, including Chris Hedges and Daniel
Ellsberg, and now a lawsuit challenging the constitutionality of the NDAA's indefinite
detention provision, including lots of whistleblowers, including a lot of nonprofits. And while some
media organizations have taken a while to wake up to the fact that the media is really
being targeted here, I think that's happening now, and that's only a good thing. And I think
the media's only going to become more and more concerned as their sources dry up because
people are scared of talking as a result of these prosecutions and as they themselves
become targets of criminal investigations.
JAY: Right. Okay. Thanks very much for joining us, Kathleen.
MCCLELLAN: Thank you.
JAY: And thank you for joining us on The Real News Network.