Senator Wyden Tells The DOJ It Needs To Stop Going After Journalists During Leak Investigations

from the if-they-aren't-a-target,-don't-target-them dept

Earlier this month, it was revealed the DOJ -- while headed by Bill Barr and an extraordinarily leaky White House -- decided it would be cool and constitutional to demand journalists' phone and email records while supposedly investigating leaks pertaining to Trump's first impeachment.

The DOJ apparently did manage to get the phone records. For whatever reason, it never bothered to collect the email metadata, despite having obtained a court order to do so. Nearly four years after this occurred, the Washington Post journalists were finally notified about the government's interest in their communications.

The Justice Department's statement was less than satisfactory. It claimed that this sort of First Amendment-troubling activity was "rare" and that it followed all of its internal guidelines when targeting journalists' communications. It also claimed it was ok because the journalists weren't the target of the investigation. All the DOJ wanted were their sources.

That's not ok no matter what internal guidelines are followed. If the DOJ has a leak to investigate, it needs to confine itself to the end doing the leaking, not the recipients of the leaks. Just because it might be easier for investigators to work their way backwards from journalists' communications to identify the source of leaks doesn't make it acceptable. The ends don't justify the means -- not when the means wander across the constitutional lines.

Now the DOJ has (yet again) angered Senator Ron Wyden. Wyden has sent a letter [PDF] to Attorney General Merrick Garland, demanding he revamp the internal rules to make this sort of thing far less likely to reoccur. Wyden is also asking for full reports on any surveillance of journalists the DOJ engaged in over the last couple of years.

As Wyden points out, using subpoenas and court orders to sniff out journalists' sources may be less disruptive than subjecting them to the justice system, but the end result is the same breach of trust and Constitutional protections.

In years past, the government would often attempt to force journalists to reveal their sources, by dragging them into court, where many chose to spend time in jail for contempt of court, rather than violate their oath to keep their sources' identities hidden. Now that most Americans carry always-on, always-recording smartphones, the government prefers to go to telecommunications companies, hoping that records of calls and texts might reveal the source. While certainly more convenient for the government, using subpoenas and surveillance orders to pry into a journalist‘ communications history is no less invasive and destructive than forcing a journalist to reveal their source.

From there, Wyden goes on to note he's working to introduce stronger protections for journalists. And with that in mind, he asks the new Attorney General to start repairing some of the damage done by the previous administration.

[T]he Biden Administration has the opportunity to voluntarily leave behind the thuggish and Orwellian abuses of power of the last administration, and stand up as a world leader for press freedoms. [...] Simply put, the government should not collect journalists' communications records unless it's investigating them for a crime or as part of an investigation into foreign espionage, in which case it should get a warrant.

That's far more restrictive than the DOJ's current standards, which seem pretty low for something with the word "justice" in it that operates in a nation that has held itself out to be the standard-bearer for personal freedoms. Hopefully, AG Garland will decide it's time for the DOJ to respect the rights all government employees swear to uphold.

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Filed Under: 1st amendment, 4th amendment, doj, intimidation, journalists, ron wyden