Words Mean Something: How Eric Holder Pretends He Won't Put Reporters In Jail Without Actually Saying That

from the watch-those-caveats dept

The DOJ has been claiming that it will be more respectful of journalists and their rights after two scandals from last year, involving spying on AP reporters and claiming reporter James Rosen was a "co-conspirator" in order to get access to his phone and email records. However, it's pretty clear that the DOJ still has no problem using questionable legal moves against reporters, such as in the ongoing situation with James Risen (note the one letter difference from the different reporter, Rosen, above). As we noted recently, the DOJ is still trying to send Risen to jail.

In a meeting with reporters (on a different topic), Holder was asked about Risen, and said: "no reporter who is doing his job is going to go to jail." This resulted in the NY Times and others suggesting that the DOJ wouldn't send Risen to jail if he continues to resist giving up his sources in one of the DOJ's many "leak" investigations.

However, it's important to note that Holder chose his words carefully, and might not actually be saying what some in the press seem to think he's saying. Note the caveat: it only applies to a "reporter who is doing his job." And, given the way the DOJ treats these things, it doesn't seem to think that reporting on leaks is a legitimate part of a reporter's job.

Kevin Gosztola, over at Firedoglake, further notes that the administration has been playing word games concerning Risen for a long time, including the repeated assertion that they're not prosecuting him. He points to this interview between Ken Auletta and the top lawyer for the Director of National Intelligence, Robert Litt:

KEN AULETTA: Do you agree that Jim Risen ought to be prosecuted for...?

ROBERT LITT: Jim Risen is not being prosecuted.

AULETTA: ...Not revealing his sources?

LITT: He’s not being prosecuted. He is being subpoenaed to give evidence as other people. The courts have determined that—to this day at least—that he doesn’t have a privilege against giving that information.

There was discussion in the last panel of a media shield law. That’s a law that President Obama has endorsed. I am not going to speculate as to how that would’ve applied to his particular case, but if there is a media shield law that’s passed, that’s another thing that the courts can do to enforce it.

There’s never been a reporter prosecuted. I don’t think there ever will be a reporter prosecuted because I think every president is aware of the adage about not getting into an argument with somebody who buys printer’s ink by the barrel. I think that as a practical matter, but it’s very different in my mind to go after the people responsible for leaking the information. [emphasis added]

So, he's not being prosecuted, and he won't go to jail if he only focused on "doing his job." But as long as he's involved in writing about leaks, he may not be "doing his job" and it seems quite likely that he may go to jail.

Filed Under: doj, eric holder, james risen, james rosen, reporters, sources

State Dept Launches 'Free the Press' Campaign Same Day DOJ Asks Supreme Court To Jail Reporter

from the just-not-the-press-we-hate dept

The US State Department announced the launch of its third annual "Free the Press" campaign today, which will purportedly highlight "journalists or media outlets that are censored, attacked, threatened, or otherwise oppressed because of their reporting." A noble mission for sure. But maybe they should kick off the campaign by criticizing their own Justice Department, which, on the very same day, has asked the Supreme Court to help them force Pulitzer Prize winning New York Times reporter James Risen into jail.

Politico's Josh Gerstein reports that the Justice Department filed a legal brief today urging the Supreme Court to reject Risen's petition to hear his reporter's privilege case, in which the Fourth Circuit ruled earlier this year that James Risen (and all journalists) can be forced to testify against their sources without any regard to the confidentiality required by their profession. This flies in the face of common law precedent all over the country, as well as the clear district court reasoning in Risen's case in 2012. (The government's Supreme Court brief can be read here.)

Associated Press reporter Matthew Lee commendably grilled the State Department spokesman about the contradiction of its press freedom campaign and the James Risen case at today's briefing on the State Department initiative, repeatedly asking if the government considers press freedom issues in the United States the same way it does aboard. The full transcript is below.

As Gerstein noted, "The Justice Department brief is unflinchingly hostile to the idea of the Supreme Court creating or finding protections for journalists," and if the Justice Department succeeds "it could place President Barack Obama in the awkward position of presiding over the jailing of a journalist in an administration the president has vowed to make the most transparent in history."

The government does mention it is working with Congress to craft a reporter's shield bill, which should give you some indication that the proposed bill is at best a watered-down, toothless version of what many courts have offered journalists for decades, and that would be no help to James Risen—the exact type of reporter that we should be attempting to protect the most. It's important to remember that in Risen's case, the government has previously analogized reporter's privilege to a criminal receiving drugs from someone and refusing to testify about it.

We'll have more on both the shield law and the Risen case soon, but it's clear that the US government still refuses to walk the walk when providing journalists the protections it says it believes in.

Oh, and while we're on the subject, maybe the State Department can use its "Free the Press" campaign to put pressure on one of its staunchest allies, the United Kingdom, which is using terrorism laws to suppress acts of journalism—something the State Department has condemned many times in the past.

Here's the full interaction between the AP's Matthew Lee and the State Department spokesperson Jennifer Psaki on James Risen and US press freedom at today's press briefing:

Reposted from Freedom of the Press Foundation

Filed Under: doj, free press, james risen, journalism, justice department, state department

Court Won't Rehear Reporter James Risen's Appeal On Being Compelled To Testify About Sources

from the on-to-the-supreme-court dept

In July, we wrote about a worrisome ruling by an appeals court, that said that NYTimes reporter James Risen could be compelled to give up his sources by putting him on the witness stand in a whistleblower case. Risen is, quite reasonably, arguing that Constitutional protections for a free press should prevent him from having to reveal sources. The appeals court panel had ruled two-to-one against Risen and in favor of the government. Risen asked the entire appeals court to rehear the appeal (a so-called "en banc" rehearing), but the Fourth Circuit appeals court has rejected the request by an overwhelming majority: 13-to-1. The one vote in favor of rehearing the appeal was, not surprisingly, the sole judge who sided with Risen in the original ruling, Roger Gregory. The case isn't over yet, as Risen will almost certainly ask the Supreme Court to hear the appeal. And, given the subject area, one hopes that the Supreme Court will agree to take the case. But, for now, we're left in a world where the government continues to have way too much power over a supposedly free press in their ongoing war against whistleblowers.

Filed Under: appeals court, first amendment, free press, james risen, journalists, supreme court

Court Says Reporters Can Be Compelled To Give Up Sources In Whistleblowing Cases

from the uh-oh dept

Right. Remember last week when the DOJ said that it was going to be a lot more careful about spying on journalists, or using them as a way to find their sources concerning government whistleblowing (or, in the DOJ's mind "evil leakers who are aiding the enemy")? Yeah, so a bit awkward on the timing here, as in the DOJ's fight against James Risen (the NY Times reporter that the DOJ has been trying to force to reveal his sources concerning earlier NSA leaks), an appeals court has now said that Risen can be compelled to testify and reveal his sources.

The two judges (out of a three judge panel) who felt this way seriously twisted previous precedents concerning whether or not someone could be compelled to testify if you "witness" a crime. But the point of the laws there are basically if you see someone dealing drugs, you can be compelled to testify about it. With a reporter talking to a source, where that source is blowing the whistle on the government, then yes, the whistleblower may be technically "breaking the law" in providing info to a journalist, but it's an entirely different situation than say a journalist reporting on drug dealers (the precedent case that the court relied on). But, the court ruled otherwise.

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.

It is difficult to overstate the chilling impact this particular ruling will have on investigative journalism, especially when it comes to reporting on government abuse and corruption. Even if a journalist promises confidentiality and completely means it, this ruling means the government can just drag that journalist to court and force him or her to reveal his or her sources. That's going to completely freak out whistleblowers. While the court disagrees, I have a hard time seeing how this does not, fundamentally, violate the First Amendment's protections for press freedom.

Given that, I agree with Judge Gregory, who wrote a strong dissent.

Today we consider the importance of a free press in ensuring the informed public debate critical to citizens’ oversight of their democratically elected representatives. Undoubtedly, the revelation of some government secrets is too damaging to our country’s national security to warrant protection by evidentiary privilege. Yet the trial by press of secret government actions can expose misguided policies, poor planning, and worse. More importantly, a free and vigorous press is an indispensable part of a system of democratic government. Our country’s Founders established the First Amendment’s guarantee of a free press as a recognition that a government unaccountable to public discourse renders that essential element of democracy – the vote – meaningless. The majority reads narrowly the law governing the protection of a reporter from revealing his sources, a decision that is, in my view, contrary to the will and wisdom of our Founders.

The dissent is really worth reading, going into great detail on how this ruling appears to contradict previous rulings protecting the right of journalists to keep sources confidential.

In the past, Risen himself has said that he will appeal such a ruling and, further, that he would go to jail before revealing his sources. Either way, yet again, we see the Obama administration's all-too-aggressive war against whistleblowers and the impact it has. Various national security reporters have already been talking about how sources have been clamming up lately, and this is only going to lead to more of that -- and much less oversight and reporting on government fraud, abuse and corruption.

Filed Under: 4th circuit, doj, first amendment, investigative journalism, james risen, journalism, leaks, press, sources, whistleblowing

Judge Slams Feds For Its Attempt To Punish Another Whistleblower

from the this-strategy-isn't-working-out-so-well dept

Part of President Obama's campaign promise was more transparency and more encouragement of whistleblowing. And yet, as we've noted, he's gone after more whistleblowers using the Espionage Act than all other former Presidents combined. However, Obama's legal attacks on whistleblowers so far don't have a very good track record. The attack on Thomas Drake -- threatening him with the potential of 35 years in jail for complaining about waste and abuse in the NSA -- fizzled. And now the latest attempt to put reporter James Risen in jail, unless he testified about his sources, has also failed.

A judge has quashed the subpoena by the government to force Risen to reveal his sources. The entire ruling by the court (issued last week, but made public this week) is worth reading as it goes through the full history and details of the case. But the key point is at the end, where the judge basically says that the government is pretty clearly just trying to harass a reporter for reporting on a secret government program. The government doesn't need Risen to make its case, but it's trying to compel him to reveal sources, knowing that this will scare some journalists from reporting but, more importantly, because it will scare off whistleblowers from going to reporters, if they could be compelled to reveal the sources. The judge isn't buying the government's argument:

Rather than explaining why the government's need for Risen's testimony outweighs the qualified reporter's privilege, the government devotes most of its energy to arguing that the reporter's privilege does not exist in criminal proceedings that are brought in good faith. Fourth Circuit precedent does not support that position. Moreover, the government has not summarized the extensive evidence that it already has collected through alternative means. Nor has the government established that Risen's testimony is necessary or critical to proving Sterling's guilt beyond a reasonable doubt. A criminal trial subpoena is not a free pass for the government to rifle through a reporter's notebook. The government must establish that there is a compelling interest for the journalist's testimony, and that there are no other means for obtaining the equivalent of that testimony.

It isn't a complete victory, in that Risen still can be made to testify, but on very limited subjects that don't break the reporter's confidentiality with his source.

Of course, rather than stop harassing Risen, the government has already announced it intends to appeal. Pretty sad for a President who once said that whistleblowers are "often the best source of information about waste, fraud, and abuse in government," to now support a campaign that is blatantly designed to scare off whistleblowing.

Filed Under: free speech, james risen, whistleblowing

The Latest Attempt By The Obama Administration To Punish Whistleblowers

from the thomas-drake,-part-II dept

Earlier this year, we noted Daniel Ellsberg's comments about how very few people realized that President Obama -- a man who ran on a platform of transparency and who has repeatedly said he supports whistleblowing efforts -- has been the most aggressive President ever in trying to punish whistleblowers. He pointed out that President Obama has brought more indictments for leaking info than all other presidents combined. And it's resulted in absolutely ridiculous prosecutions like the Thomas Drake affair, which finally collapsed after it became clear that the feds were merely being vindictive against Drake for his whistleblowing activities, rather than finding any actual case of espionage.

Now we have the sequel to the Drake situation, with much higher stakes in some ways. Conor Friedersdorf has a story at The Atlantic, about the administration's efforts to put reporter James Risen in jail. The full story is a worth a read, but it's pretty ridiculous. Risen is famous for exposing the Bush administrations warrantless wiretapping regime, as well as a few other clearly illegal programs. He so infuriated the Bush administration that Dick Cheney wanted to put him in jail... but realized there was no legitimate way to do so.

Along comes President Barack Obama. Part of Obama's campaign was actually built off of the information that Risen exposed:

You'd think that President Obama would take a different view. After all, he might not be in the White House today if the Bush Administration would've succeeded in keeping all its secrets: the torture, the detainee deaths, the abuses at Abu Ghraib, the spying on Americans, the faulty pre-war intelligence in Iraq, and all the rest. One would expect Obama of all people to see the value in Risen's reporting - the real ways in which he has helped to preserve civil liberties, American freedom, and accountability in government - and to weigh that against the national security implications of reporting in 2006 on a bungled CIA effort that happened way back in the year 2000.

You'd think. Instead, we get the opposite. The Obama administration has come down even harder on Risen than the Bush administration did, and is now threatening him with jail for not exposing his sources for some of his stories. This showdown may come soon, as a judge has indicated that she may require Risen to give up his sources. As Glenn Greenwald has noted, this whole thing seems to be a part of the "climate of fear" that was certainly present among the previous administration, but which has ratcheted up dramatically with the current administration. The key "fear" element is to make it known to both insiders who leak and reporters who publish those stories, that they could face jail time, even as the administration claims that it's encouraging whistleblowing.

Ellsberg speculated that President Obama's reason for being so much more aggressive on these issues was one of embarrassment . That is, the President recognizes that the federal government is doing all sorts of questionable stuff -- the type of stuff he actively campaigned against -- and is embarrassed by it. But since he (for whatever reason) is unable to put a stop to it, he's trying to do the next best thing: which is threaten and or punish anyone who might reveal what's being done. I'm not sure I buy that theory, but either way the situation is clearly troubling, and completely counter to the image that Obama has tried to portray of openness and transparency, and a willingness to respond directly to critics rather than punish them.

If you're concerned about freedom of speech and freedom of the press, this story should concern you. If you believe in the importance of whistleblowers to keep governments accountable when they do things like break the clear letter and intent of the law, this story should concern you. Tragically, however, it's not getting very much attention at all.

Filed Under: free speech, james risen, thomas drake, whistleblowing