The Government Retreats — a Bit — in Its Assault on Press Freedom

This past week, the Department of Justice retreated from the attacks on press freedom that marked the Obama Administration’s early years. First, on Monday, federal prosecutors announced that they would not call reporter James Risen to testify in the trial of Jeffrey Sterling. And then, on Wednesday, Attorney General Eric Holder announced (but did not publish) revisions to the policy governing when the Department of Justice can seek to question journalists or obtain information from media organizations about their sources. Maybe the Obama Administration has finally realized how important a role a free press plays in our democracy, or perhaps it finally occurred to AG Holder that it is embarrassing and hypocritical to jail journalists for refusing to reveal their sources while the U.S. is condemning Iran and other governments for similar actions.

Risen had been subpoenaed in 2008 to appear before a grand jury and to testify about the source of information in his book concerning a CIA-led scheme to feed Iranians flawed information about nuclear reactors. He said at the time, and consistently, that he would not disclose his sources, and moved to quash the subpoena. After a multi-year battle in the courts, the Fourth Circuit held — in a terrible opinion for the Fourth Estate — that there was no constitutional privilege for journalists to refuse to disclose their sources to a criminal grand jury. Last June, the Supreme Court declined to hear the appeal. That set the stage for Risen, a high-profile New York Times reporter, to be held in contempt and sentenced to jail for refusing to testify.

As the Risen case was proceeding through the courts, the Department of Justice also came under fire for two leak investigations it pursued. It secretly sought the phone records of more than 20 AP reporters and editors, apparently to unearth information about AP’s coverage of CIA work against Yemeni terrorists plotting to bomb an airliner. (I have argued previously that it was cowardly to do so because it didn’t give the AP the opportunity to challenge the subpoenas in court.) And in an application for a search warrant for his emails, it labeled Fox reporter James Rosen an aider and abettor of an Espionage Act violation by revealing confidential government information provided by a source in his reporting about North Korea’s nuclear program.

The ensuing protests focused attention on substantial problems with the DOJ’s long-standing policy for seeking information from journalists and led to a series of high-level meetings between journalists, their lawyers, and deaprtment officials, and to the release last February of a revised set of guidelines for protecting the records of journalists against court orders, warrants, and subpoenas. Those guidelines expanded journalistic protections to phone records and emails held by third parties and also made it more likely that the news media would know about and be able to go to court to challenge subpoenas seeking their records. But they also limited the scope of such journalistic protections to “ordinary newsgathering” without defining what “ordinary” meant — leaving an exception that could swallow the policy’s benefits. Further meetings with news organizations and prosecutors followed, and the policy announced earlier this week reflects the feedback the DOJ received in those meetings.

In its revised policy, the DOJ removed the word “ordinary” and says the guidelines are intended “to provide protection to members of the news media from certain law enforcement tools. . . that might unreasonably impair newsgathering activities.” In general, the attorney general needs to approve all legal process to obtain information from journalists, including their phone and email records, and will give the journalists or media organization notice in advance — unless the attorney general determines that notice would “for compelling reason… pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.” But — perhaps in a sop to the prosecutors — the revisions include several new provisions to emphasize that where the attorney general believes that the journalist “is a subject or target of an investigation relating to an offense committed in the course of, or arising out of, newsgathering activities,” the AG does not need to have made all reasonable attempts to obtain the information elsewhere, negotiate to narrow the scope of the process, or provide notice to the affected media organization.

In general, the reforms are welcome. The requirement that federal prosecutors must get approval from the attorney general’s office before seeking to subpoena information from journalists has gone a long way toward reducing the burden on media outlets and protecting editorial independence (though media still has to deal with state prosecutors and civil suits). And the presumption of notice to news organizations will give such organizations opportunities to argue their cases before a court before they are compelled to hand over source information. But the policy still leaves a fair amount of leeway for national security investigations — some of the most important reporting often based on confidential sources. Moreover, how the new policy will be applied by Holder’s successor remains to be seen.

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