Sunday, January 30, 2011

Secrets, Strategies and Whistleblowers

Earlier this month I took part in a discussion at the University of Manitoba about the ethics of Wikileaks. During the debate, I thought it was important to outline how investigative reports – particularly those that involve whistleblower allegations – are often greeted by the targets of the investigation.

The first reaction is often silence. By refusing to comment, some people hope the report won’t be picked up by other media outlets and will just fade away. Luckily for many targets of investigations, media rivalries often work in their favour. If one newspaper or broadcast outlet gets a scoop, others may try to ignore it. And if no one seems interested, the original media outlet may get discouraged. The story ends up having no legs, and a potentially important investigation may get curtailed.

A second strategy is often a studied indifference. The investigation is labelled old news, or it is disparaged as not really revealing anything of consequence. The strategy once again is to convince other media outlets, and news consumers, that there is nothing to the report. If it is in the power of the target to create a distraction, or a competing announcement, this can also serve to divert attention from the report.

Strategy Number Three involves attacking the messenger. The whistleblower who provided the media with information is labelled evil, corrupt, perhaps even mentally ill. As for the media outlet itself, it is called a dupe of the whistleblower, perhaps part of a conspiracy to smear the targets of the investigation. This strategy can get nasty. Whistleblowers can be slapped with lawsuits, and reporters can be thrown in jail for refusing to reveal sources, or for inducing sources to smear their former employers. If you have seen the movie The Insider, about allegations against Big Tobacco, you know the strategy well.

Of course in some countries, it can get more extreme. Journalists can get shot, even murdered. It has happened around the world. Call it Strategy Number Four, the ultimate one.

So in many ways, what has happened with the Wikileaks story is not altogether surprising, though the scope of the revelations and the ferocity of the reactions verge on the unprecedented.

Wikileaks has been around since 2006, but despite many fascinating early revelations, Strategy Number One was in place. It was largely ignored, and many people never heard of the website until 2010, when the disclosures really started ramping up.

Then came the revelations last fall about the Iraq war, showing evidence of 15,000 previously unreported civilian deaths in Iraq. The U.S. and Britain were saying up to this point that there were no official counts of casualties in Iraq. The documents instead showed meticulous records and an exact toll of 66,081 non-combatant deaths over a five-year period.

So Strategy Number 2 kicked in. A Pentagon spokesman called the release of these documents “mundane”, and former British Prime Minister Tony Blair insisted that they contained nothing new.

But that couldn’t hold up for long, especially when the UN chief investigator on torture said: "In relation to what now has been revealed by WikiLeaks, it confirms what we have heard about the brutality and the torture that were systematically practiced by Iraqi security forces and irregular militias.” And another top United Nations official called on the Obama administration to investigate the role of U.S. forces in human rights abuses in Iraq.

Things have escalated exponentially since then, of course. Arguably, Strategy Nunber 3 is in place. Now there’s talk of charging Assange under the Espionage Act in the US, and there have even been a few calls, joking and otherwise, for his assassination.

It is useful to compare the entire Wikileaks saga with the Pentagon Papers, as it reveals a number of similarities in strategy.

Daniel Ellsberg was a US establishment insider. He worked for the Pentagon, then the State Department, and then for a think tank analyzing the Vietnam War. He decided to leak an exhaustive internal analysis of that war. His aim was to bring an end to the war.

This was in 1971, and Richard Nixon was president. Interestingly, Nixon at first wanted to take the indifferent approach. The revelations went up to 1967, and mostly concerned Democratic presidents. But the US was so fearful of a culture of continued leaks that it chose to ramp up the strategy to the next level: smears and threats.

The most colourful part of the strategy, of course, was the creation of a secret unit called The Plumbers, a covert team that broke into Ellsberg’s psychiatrist’s office in an attempt to get files that would discredit him. This is where G. Gordon Liddy, E. Howard Hunt and other shadowy characters made their first appearance. All of this was subsequently revealed, and became part and parcel of the scandal that eventually forced Nixon from office. But in the meantime the attack on Ellsberg continued.

Ellsberg provided the papers to the New York Times, which consulted its lawyers, who advised not to publish them. But the newspaper decided to proceed, amid risks of injunctions, lawsuits and threats of worse. Ellsberg was threatened with prosecution under the 1917 Espionage Act, the same law Assange is being targeted for. He was eventually charged with theft and being in possession of secret documents. But the dirty tricks campaign, and other tainted evidence, led to the dismissal of all charges. On the question of whether the New York Times and other newspapers had the right to publish the material, the Supreme Court ultimately sided with the press. Here is what Supreme Court Justice Hugo Black said:

“Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people, and sending them off to distant lands to die of foreign fevers and foreign shot and shell. … The government’s power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people.”

It’s interesting that many people who find fault with Assange have said they support the publication of the Pentagon Papers. At the time, though, Ellsberg and his media partners faced many of the same strategies and attacks that Wikileaks is now enduring.

How should investigative journalists assess the Wikileaks phenomenon? We can debate the sincerity or appropriateness of Julian Assange’s motivations, just as we can examine every aspect of his private life, down to the choices he makes or alleged improprieties he may commit in individual sexual encounters. It seems clear, though, that it is far more important to assess the value of the information he has helped to publicize. Does it help us get any closer to the truth of important issues? Does it assist us in holding powerful institutions to account? Those are the issues people in the U.S., Britain, Tunisia, Egypt and many other countries are grappling with today.

Wednesday, January 26, 2011

Media Law for Canadian Journalists

Dean Jobb's newly-revised book on media law is an invaluable tool for anyone practising journalism in Canada.

Jobb is an associate professor at King's College School of Journalism in Halifax. He has specialized in covering and studying the courts and legal issues. The second edition of Media Law for Canadian Journalists covers all the essential legal topics journalists need to know.

Keeping up with all the new decisions and nuances of media law can be a full-time job. But the author carefully tracks the developments and puts them into context for reporters. From using Twitter inside a courtroom to avoiding defamatory remarks on Facebook, Jobb also provides useful advice on handling social media tools in a legally responsible manner.

Because Jobb has extensive reporting experience, he has a good appreciation of the often blurry boundaries between ethics, law and good taste. His book has a separate chapter on ethics and professional responsibility, and he isn't afraid to offer his opinion on the propriety of different types of reporting.

This is an important book, and whether you're a professional journalist or an occasional blogger, you won't regret getting a copy. It is published by Emond Montgomery Publications.