PEN’s Letter to President Obama on Press Freedom and Leak Investigations
June 3, 2013
President Barack Obama
The White House
1600 Pennsylvania Avenue
Washington, DC 20500
Fax: (202) 456-2461
Dear President Obama,
PEN American Center is deeply disturbed by expanding encroachments on press freedom in the United States in the name of leak investigations, and by the increasingly aggressive nature of the leak investigations themselves. We believe these investigations not only threaten our freedom to carry out our work in the United States, but also heighten the dangers our international colleagues face in countries with weaker policy and constitutional protections for freedom of the press.
Revelations that the Justice Department secretly subpoenaed extensive phone and fax records from the Associated Press and three of its reporters without prior notice to the news organization have stirred justifiable outrage in the United States, and have raised alarms among press freedom advocates around the world. This reaction stems in part from the action itself, which appears to have violated the Justice Department’s own guidelines for seeking information from reporters in leak investigations. But it also reflects legitimate and growing concern, both domestically and internationally, over a pattern of aggressive leak investigations that threatens to tip the balance toward secrecy and away from a First Amendment-protected society in which citizens are equipped to understand the workings, and evaluate the actions, of their own government.
Particularly troubling to us is recent information concerning the Justice Department’s pursuit not only of phone records but also personal emails and records of the movements of Fox News reporter James Rosen in connection with an investigation of National Security Agency Senior Advisor Stephen Jin-Woo Kim. That case has two alarming features, beyond the unaccountably broad scope of the information sought about a reporter’s movements and communications. First, we are deeply troubled by reports that Rosen himself may have been a target of the leak investigation and a candidate for prosecution. The suggestion that U.S. law enforcement officials now view establishing a means to communicate confidentially with a source—an activity that is part and parcel of newsgathering—as potentially giving rise to criminal complicity in leaking is unprecedented, and poses a grave risk of chilling the activity of investigative reporters.
We are also concerned with the decision to prosecute Kim for espionage. Kim is one of six people to be charged by this Administration under the Espionage Act, more than have been charged in connection with leaks under the Act by all previous administrations combined. Information of the kind Mr. Kim is alleged to have leaked—in this case, that U.S. intelligence agencies believed that North Korea might conduct another nuclear test if sanctions against the country were expanded—is routinely reported in the U.S. media, and was clearly delivered with the purpose of communicating it not to an enemy state but to the American public. To call this espionage is to expand the definition of spying and government secrecy beyond recognition.
You will have directly heard from media organizations how these particular investigations are already affecting their work to gather news and bring important information into the public realm. We share their concerns. Moreover, as an international organization that advocates on behalf of writers and journalists working in countries without our strong First Amendment protections, PEN believes that investigations of this kind will compound the risks many face as they struggle to preserve and increase the free flow of information in their own societies.
PEN’s international case list already includes many writers and journalists who have been targeted for conveying or reporting information their governments proclaimed as secrets. In China, Shi Tao is serving a 10-year sentence for “illegally divulging state secrets abroad” for describing the contents of a propaganda department directive to censor press coverage of the 15th anniversary of the Tiananmen Square crackdown. In Iran, Mohammad Davari is serving a six-year sentence for “propagating against the regime” for reporting on widespread complaints of abuse and rape of inmates at Kahrizak Detention Center. In Cuba, journalist José Antonio Torres is serving a 14-year prison term for espionage after writing articles about the mismanagement of several development projects for a government newspaper.
In campaigning for these and many other journalists and writers, PEN has counted on, and has been grateful for, the support of the United States, which has stood as a beacon of press freedom and has been one of its most powerful advocates internationally. But as reports mount that U.S. journalists are coming under Justice Department scrutiny for carrying out their work, that status is threatened: regimes that are only too eager to spy on and criminalize journalists will be quick to point to the investigations of journalists in the United States as justification for their own actions.
We are confident that you share these concerns, both as president and as a writer. We were encouraged that you have asked Attorney General Holder to review guidelines for investigations involving reporters, and we are gratified for your support for federal shield protections for journalists. And we are grateful to the attorney general for convening meetings with media organizations to hear the concerns we have expressed here. We very much hope we, too, might have an opportunity to meet with members of your Administration to share PEN’s concerns about the threat that overly-aggressive leak investigations in the United States pose for our colleagues working in countries with closed and anti-democratic regimes.
On behalf of the Board of Directors and 3,300 members of PEN American Center,
Director, Freedom to Write and International Programs