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‘Journalism is Effectively Being Criminalized’: Jill Abramson and Janine Gibson Analyze the Post-Snowden World

In a post-Snowden age, what rights do journalists have, and how can journalists protect their confidential sources?

That’s the question that The New York Times‘ executive editor Jill Abramson, The Guardian U.S. editor-in-chief Janine Gibson, and renowned law professors David Schulz and Cass Sunstein debated at Columbia J-School’s Journalism After Snowden panel.

In front of a packed audience, the panelists, moderated by Emily Bell, director of Columbia University’s Tow Center for Digital Journalism, analyzed how hostile atmosphere towards reporters in the wake of the Snowden affair has affected journalistic, governmental, and legal issues.

They started at the beginning. Of seeing the Snowden documents for the the first time, Gibson said that she thought, “It’s either an incredibly huge, sensitive, difficult story … or it’s The Hitler Diaries – it’s a great big hoax.”

“At The Guardian, there are only ever two questions you need to ask yourself,” Gibson continued, “They are: Is this story true? and Is it in the public interest?”

She and her team scrambled to verify the data, which proved difficult: “You can’t Google ‘secret [Foreign Intelligence Surveillance Act] FISA court orders’ to see if it looks like one that’s in the public domain.”

Once they verified that the documents were real, the next step was figuring out what the story was and how best to tell it. “The first one was clearly the FISA court order,” said Gibson. However, because the British government wanted to pull the plug on The Guardian‘s reporting, Gibson knew she had to involve other experts and another news organization, which is when they began to collaborate with The New York Times.

“If you have a classified document, at least in theory, the mere possession of it is a violation of the law,” weighed in Professor Schulz, a member of The Guardian‘s outside legal counsel. “So it becomes a tricky situation to advise a reporter or a journalist how to handle that.”

“On the one hand, we have this very vague law [created during World War I to ban espionage] and on the other hand, we have this notion that the press is different. That there are first amendment rights and a long line of cases that say that you can’t prosecute the press for publishing true, newsworthy information,” continued Schulz. “We don’t know how the court will deal with that, when the balance is the public’s right to know something versus a national security interest. That’s never been decided.”

“There should be a designated official in The White House who has privacy and civil liberties as his charge,” said Sunstein, a lawyer and a member of President Obama’s Review Group on Intelligence and Communications Technologies. “That person in the room having a convening function and having a presence can help insure the kind of continuing scrutiny that a free society needs.”

That’s an ideal situation, but Abramson pointed out that government hostility has grown towards news organizations. “During the Obama administration, there have been seven criminal leak investigations,” she said, more than twice the amount of any previous administration.

“This has had a profound effect on journalists who cover national security,” she explained. “Journalism about sensitive national security issues … is effectively being criminalized.”

“This has had a profound effect on journalists who cover national security,” she explained. “Journalism about sensitive national security issues … is effectively being criminalized.”

“As journalists, we all understand that somebody might threaten you to try to get you to reveal a source,” Gibson added. “We’re not anymore going to be worried about naming names; it’s going to be about proving you’re not a co-conspirator.”

“We need whistleblowers,” Schulz emphasized, citing revelations about secret CIA prisons and waterboarding, which would not have come to light without confidential sources. “You can’t count on oversight by Congress and the courts to adequately perform certain types of tasks.”

“If we don’t have a mechanism that allows whistleblowers, our whole society is going to suffer,” Schulz added.

Gibson and Abramson underscored how governments can benefit from the scrutiny of the press when it comes to classified materials. “Once the UK government tried to remove The Guardian from the [Snowden] equation, we spent some time saying to them, ‘Do you not remember what happened with Wikileaks?’”

“Once you remove the news organization with the 200-year tradition, history, values, legal resources, concern about public interests, the incredibly fine-grain judgments and reporting that go on – if you remove them, the information will find its way out in a way that you cannot engage with.”

Abramson said that the The New York Times plays a similar role. “We are a responsible filter for evaluating the importance of the information—what should be disclosed and perhaps even what shouldn’t be disclosed.”

Bell asked the panelists what an ideal solution would be.

“An international norm or agreement that safeguards internet freedom,” Sunstein said.

Countered Gibson: “An international agreement that journalists will not be prosecuted for doing their jobs.”

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