Jeff Sessions Suggests He's Steering The DOJ Towards Prosecuting More Journalists

from the publish-and-die dept

Jeff Sessions and the DOJ are back to threatening leakers again. It seems counterproductive, considering each new threat of leak investigations does little to stem the steady flow of leaks. But the new DOJ boss seems ready to go further than his predecessors.

Having already expressed an interest in taking care of Obama's unfinished business by going after Wikileaks, Sessions now appears to be headed towards threatening journalism and the First Amendment itself. This would be a new direction for the Justice Department. A 2013 report by the DOJ stated it was unwilling to consider the punishment of journalists during leak investigations, except as a last resort.

As an initial matter, it bears emphasis that it has been and remains the Department's policy that members of the news media will not be subject to prosecution based solely on newsgathering activities. Furthermore, in light of the importance of the constitutionally protected newsgathering process, the Department views the use of tools to seek evidence from or involving the news media as an extraordinary measure.

Journalists have been subpoenaed before in leak investigations, but the DOJ has generally been unwilling to jail journalists for refusing to hand over information on their sources. Jeff Sessions, however, seems less concerned about using the weight of the law against members of the press.

In his written remarks before a press briefing on national security leaks, Sessions said this:

I have listened to career investigators and prosecutors about how to most successfully investigate and prosecute these matters. At their suggestion, one of the things we are doing is reviewing policies affecting media subpoenas. We respect the important role that the press plays and will give them respect, but it is not unlimited. They cannot place lives at risk with impunity. We must balance their role with protecting our national security and the lives of those who serve in our intelligence community, the armed forces, and all law abiding Americans.

This strongly suggests the 2013 guidelines on "new media" will be rewritten by Sessions' DOJ to justify increased prosecutions of journalists. This is a dangerous step forward, especially in an era where leaks seem to be coming faster than journalists can publish them. Throwing a few journalists in jail for contempt creates a severe chilling effect. Even the enhanced threat of prosecution may be enough to discourage journalists from publishing leaked docs or working with government sources.

Sessions was asked directly if this administration would prosecute journalists. He refused to answer the question before ending the briefing. This would be the second time Sessions has dodged this question -- the first being Sen. Klobluchar's question along the same lines during his confirmation hearing. What better way to send a chilling message to journalists then telling them their freedom might be at stake as they attend a press briefing.

Filed Under: chilling effects, doj, first amendment, free speech, jeff sessions, journalism, sources, subpoenas

Canadian Appeals Court Says Vice Media Must Turn Over Communications With Source To Law Enforcement

from the putting-the-scare-quotes-back-in-'free'-press dept

Roughly a year ago, a Canadian court ruled that Vice Media must turn over conversations one of its journalists had with an alleged terrorist to the Royal Canadian Mounted Police. The ruling created a chilling effect, carving a hole in journalistic protections in favor of national security concerns. Not only would it deter journalists from speaking to sources who might, at some point in the future, face criminal charges, but it also would deter sources from speaking to journalists for fear their cover might be blown by law enforcement court orders.

Vice appealed the decision. Unfortunately, there's no better news awaiting them at the Ontario Court of Appeals. Elizabeth Raymer of Legal Feeds reports the higher court has upheld the previous ruling.

The Court of Appeal for Ontario has upheld a production order requiring a journalist to hand over all his communications with a man charged with terrorism-related offences. Journalist and civil liberties organizations have called the decision a blow to reporters abilities to protect their sources and publish stories in the public interest.

The Appeals Court weighed the competing issues -- journalistic protections vs. law enforcement needs -- and decided it was a toss-up.

“A free and vigorous press is essential to the proper functioning of a democracy,” Justice David Doherty of the Ontario appellate court acknowledged at the start of his judgment.

“The protection of society from serious criminal activity is equally important to the maintenance of a functioning democracy. Those fundamental societal concerns can come into conflict. When they do, it falls to the court to resolve those conflicts. In this case, claims based on the freedom of the press and those based on effective law enforcement collide at two points.”

But in the event of a tie, the win goes to law enforcement apparently. From the decision [PDF]:

After a careful consideration of the entirety of the record before him, the application judge concluded, at para. 47:

I am satisfied that the ITO set forth a basis upon which, after taking into account the special position of the media, the authorizing justice could have determined that the balance between the interests of law enforcement and the media’s right to freedom of expression favoured making the production order.

The reasons of the application judge reveal no misapprehension of the evidence, no failure to consider factors relevant to his assessment, or any other form of extractable legal error. It was reasonable, on this record, to find the balancing of the competing interests favoured making the production order.

Vice's attempt to quash the production order has been denied. Barring an appeal to the Supreme Court, the RCMP will get their man['s communications]… and encroach a bit further on press protections.

Filed Under: canada, free press, free speech, sources, terrorism
Companies: vice

If You're Worried About What President Trump Can Do To The Press, Blame President Obama

from the look-at-that-roadmap dept

President Elect Donald Trump has made no secret of his dislike for any reporter who reports stuff about him in a negative light, and throughout the campaign and even after being elected, he has spent a tremendous amount of time insulting, attacking and berating the press. Oh, and threatening them with bogus defamation claims that rarely seem to turn into actual lawsuits. Trump famously promised to "open up" the libel laws if he became President, though there really isn't that much he can do on that issue directly.

But, as a story at Politco is noting, it's probably not libel laws that reporters should be worried about: it's things like the Espionage Act and bogus intrusive investigations of reporters by the DOJ. And, really, while the report only mentions this in passing, if a President Trump goes down that route, it'll be because he's picking up on the trend created by his predecessor, President Obama. As we've noted, President Obama has used the Espionage Act against more whistleblowers than all other Presidents in history combined. In fact, he used it more than twice as many times as all others combined. Think about that.

During the Obama administration, the Justice Department brought more criminal charges under the Espionage Act—a vague 1917 law that makes it illegal to share information related to national security—than it had under all previous presidents combined. It used the Espionage Act seven times against government employees who spoke to reporters. If Trump continues to aggressively prosecute reporters’ sources, it will make it much tougher for journalists to report on the government.

“What is very true is that an increase in prosecution of leakers and leak investigations has a huge chilling effect on the ability to report important information about what the government is up to,” said Laura Handman, a partner at Davis Wright Tremaine who specializes in media and First Amendment law.

This could be especially damaging to journalists because confidential sources and government leakers are likely to be the best source of exposing potential wrongdoing in Trump’s government.

And that's not the only intimidating tip that a President Trump could pick up from President Obama:

Trump’s Justice Department could also ask for more federal grand jury subpoenas against reporters who rely on confidential sources to report on government activities.

This is another tactic that the Obama administration has used. New York Times reporter James Risen was nearly held in contempt of court and thrown in jail when he refused to identify one of his sources, who was being prosecuted under the Espionage Act.

The Trump administration could even try to use the Espionage Act to bring criminal charges against journalists, according to First Amendment experts.

“There are sections of the Espionage Act which have now been used, under President Obama, against leakers which could be used against those who publish information obtained from those leakers,” Abrams said.

The article also talks about the infamous and ridiculous case of James Rosen, a Fox News reporter that the Obama administration came mighty close to using the Espionage Act on, calling Rosen a "co-conspirator" in the leaking of confidential information. Then Attorney General Eric Holder later admitted he regretted this decision, but it was pretty difficult to take seriously.

Here at Techdirt we called out the Obama administration many, many times on these highly questionable tactics, intimidating and threatening whistleblowers and journalists alike. And people told us we were overreacting. Somehow, I get the feeling that those who opposed Trump in the election will suddenly have a change of heart over these practices. If Trump goes down that road, those who are upset should be blaming President Obama and his Justice Department for leading the way.

Filed Under: barack obama, donald trump, espionage act, president obama, reporters, sources, subpoenas, whisteblowing

Will The Washington Post Give Back Its Pulitzer And Stand Trial With Snowden?

from the senseless dept

We already know that the Washington Post editorial board has some cognitive dissonance when it comes to Ed Snowden. Three years ago, right after the Washington Post itself, via reporter Barton Gellman, broke a bunch of the initial stories around the Ed Snowden documents -- including the first public report on the Section 702 PRISM program -- the editorial board wrote a piece condemning Snowden's leaks. Now, it's true (as many point out) that the editorial board is separate from the reporters who work at the paper, but it still is really quite amazing that the editorial board would not only burn a source like that but basically complain about its own journalism.

It appears that three years later, the Post's editorial board has not changed its perspective. In response to the campaign to pardon Snowden, the Washington Post has come out with a tone deaf editorial against pardoning Snowden, calling for him to be prosecuted, and insisting that Snowden caused real harm with the revelations. Here's the really incredible part. The Post focuses its complaint on the revelation of the PRISM program -- and that is the story that the Post broke. Glenn Greenwald and the Guardian had the first story, about the Section 215 mass phone records surveillance program. But it was the Post that had the first story about PRISM. And yet, the Washington Post now says that while revealing the 215 program may have been a public service, revealing PRISM was a crime.

The complication is that Mr. Snowden did more than that. He also pilfered, and leaked, information about a separate overseas NSA Internet-monitoring program, PRISM, that was both clearly legal and not clearly threatening to privacy. (It was also not permanent; the law authorizing it expires next year.) Worse — far worse — he also leaked details of basically defensible international intelligence operations: cooperation with Scandinavian services against Russia; spying on the wife of an Osama bin Laden associate; and certain offensive cyber operations in China. No specific harm, actual or attempted, to any individual American was ever shown to have resulted from the NSA telephone metadata program Mr. Snowden brought to light. In contrast, his revelations about the agency’s international operations disrupted lawful intelligence-gathering, causing possibly “tremendous damage” to national security, according to a unanimous, bipartisan report by the House Permanent Select Committee on Intelligence. What higher cause did that serve?

Except it wasn't Ed Snowden who publicly revealed information about PRISM. It was the Washington Post. And it won a freaking Pulitzer Prize for that reporting as well. And now it says that the revelation of that program should never have happened?

Really?

Remember that, while many people falsely think that Snowden is the one who revealed these programs to the public, that's not the case. He gave the documents to certain journalists, saying that he trusted them to sort through them and determine what was newsworthy, what was not, and what should be kept secret. It was the Washington Post that determined the PRISM program -- which is still subject to legal challenges (though so far has been found to be legal) -- was serious enough for news coverage. Not Ed Snowden. And yet now the Post says Snowden should be prosecuted for the journalistic decision it made, which earned it a Pulitzer.

Yes, the Post editorial board is free to make such a stupid decision, but it's only going to harm its journalistic staff. What source is going to go to the Washington Post now, when it's the very paper that took all the glory from publishing stories from a source -- and then called for him to be thrown in jail?

Here's what the Washington Post's Executive Editor Marty Baron said about the Pulitzer Prize when it was announced:

Post Executive Editor Martin Baron said Monday that the reporting exposed a national policy “with profound implications for American citizens’ constitutional rights” and the rights of individuals around the world.

“Disclosing the massive expansion of the NSA’s surveillance network absolutely was a public service,” Baron said. “In constructing a surveillance system of breathtaking scope and intrusiveness, our government also sharply eroded individual privacy. All of this was done in secret, without public debate, and with clear weaknesses in oversight.”

Baron added that without Snowden’s disclosures, “we never would have known how far this country had shifted away from the rights of the individual in favor of state power. There would have been no public debate about the proper balance between privacy and national security. As even the president has acknowledged, this is a conversation we need to have.”

Hmm. That doesn't seem to fit with what his own editorial board is now saying about Snowden's revelations. When asked about this now, in response to the editorial, Baron suddenly came down with a case of the "no comments."

In an email response to Fortune, Post editor-in-chief Marty Baron said: “I don’t comment on editorials. As you know, that department is entirely separate from the newsroom. You should contact Bart Gellman.”

Gellman, of course, is the reporter who wrote those stories for the Post and who has said he "profoundly" disagrees with the Post's editorial.

As he should, because the editorial is not just tone deaf and ridiculous, it's cowardly bullshit that massively harms the reputation of the Post itself, and certainly undermines its credibility with sources.

Filed Under: 702, barton gellman, ed snowden, editorial board, journalism, mass surveillance, pardon snowden, sources
Companies: washington post

Canadian Court Says Vice Magazine Must Hand Over Its Communications With A Suspected Terrorist

from the Canadian-journalists-expect-an-Arctic-Front-to-begin-moving-in... dept

A Canadian court -- granting a request made by the Royal Canadian Mounted Police (RCMP) -- is in the process of dismantling protections for Canadian journalists. The case involves a Skype interview by Vice Magazine with an alleged terrorist currently located in Syria. The interview, in which the self-avowed terrorist (Farad Mohamed Shirdon) claimed an attack in New York City was imminent, appeared back in October 2015 and led directly to his being charged in absentia with several terrorism-related offenses.

Since that point, Vice has been battling to protect itself from a production order by the RCMP, seeking communications between Vice reporter Ben Makuch and Shidron. It has argued that forcing a journalistic entity to turn over communications with a source would set a dangerous precedent that would adversely affect press freedom in that country.

The RCMP says the communications are evidence -- or presumably are, since they haven't been turned over yet. The court seems to agree.

[I]n a decision released this week, the court rejected VICE's attempt to quash the order, ruling that the police's ability to gather evidence trumps the rights of VICE and Makuch to protect their work product in this case. Specifically, the screen captures of the chats are "important evidence in relation to very serious allegations" and "The screen captures are a copy of the actual electronic messages that Shirdon placed on Mr. Makuch's computer screen. They are highly reliable evidence that do not require a second hand interpretation," Justice Ian MacDonell wrote in his decision.

Vice News is looking at appealing this order. As it points out, its reporting already led to the identifying and charging of Shidron, something that most likely would not have happened without its publication. It also claims nothing it has in its possession will provide any more insight on Shidron's current location or future plans.

As Vice's attorney points out, this sort of demand is a threat to journalism.

VICE's lawyer, Iain MacKinnon, said similar production orders could become more common in Canada if police know they can easily obtain notes and recordings from journalists. "It could have a very real chilling effect on the willingness of people and witnesses speaking to journalists," said MacKinnon. "If people realize that what they say to a journalist could easily be handed over to police and used as part of a criminal investigation, that may scare somebody off in speaking to a journalist."

A large part of what makes journalism journalism is investigatory work and speaking to sources who wouldn't feel comfortable speaking to someone if they couldn't be assured anonymity or other protections. Journalists are not an extension of law enforcement or any other government body (or at least shouldn't be), but that's what an order like this does: makes Vice News a convenient source for law enforcement to obtain communications and documents from. I'm sure Vice has no desire to "harbor" a terrorist, but it also has no desire to see terrorism fears being leveraged to create a dangerous precedent.

Filed Under: ben makuch, canada, journalism, journalist shield, protected sources, rcmp, sources, terorrism
Companies: vice

Eight Years Ago, The Iowa Caucus Convinced Me Of The Power Of Twitter... Today? Not So Much

from the things-change dept

I first signed up for Twitter in March of 2007, but I'll admit that I barely used it for about nine months. There were two events in early 2008, however, that convinced me of Twitter's power. The first was that I logged in and saw someone who I only knew online, but not in person, mention a hole-in-the-wall restaurant in NY that I really liked, and because of that, we actually arranged to meet up there for lunch a few weeks later when I was in NY. That ability to connect people was really powerful. The second, though, was much bigger, and it was the Iowa caucus in 2008. It was in January in 2008, but I'm thinking about it today, obviously because (in case you haven't heard), today is this year's Iowa caucus that officially kicks off the Presidential silly season, known as the Presidential nominating process.

As the caucuses ramped up in that evening in 2008, something kind of fascinating happened. I saw someone (again, someone I knew via Twitter, but not in real life), retweet an account that someone had set up solely to retweet in person tweets from within the various caucuses. I quickly followed that account (which I long ago unfollowed, so I don't even remember the account name or even if it still exists). And it kept popping up first person real life reports of what was happening with the various caucus gatherings. And then I started following some of the mainstream news coverage of the caucus as well. To be honest, I didn't really care that much about what happened in Iowa, but the tweets from inside caucus gatherings seemed... unique. It made it more real and more personal.

And here was the real kicker: almost every retweet showed Barack Obama beating Hillary Clinton and John Edwards (the two other "leading" candidates) sometimes by a large margin. And yet every single mainstream news report claimed that based on their "exit polls" or whatever the hell they were doing, all three candidates were stuck in a statistical dead heat 33/33/33. But as the evening wore on, and more and more of the Twitter reports showed Obama winning caucus gather after caucus gathering, the mainstream media reports finally started showing some separating between the candidates, with Obama finally winning with over 37% of the vote (Clinton and Edwards each had about 29+).


Of course, in the eight years since, Twitter has grown and changed and struggled. And I doubt I'll have the same experience tonight. Already (unlike eight years ago), the press is pushing out lists of people to follow on Twitter to "get the full story" on the Iowa caucuses, and the list is mainly made up of professional journalists. And, at the same time, the company continues to try to reinvent itself to make itself more acceptable to Wall Street investors. The company stupidly shunned the developers and contributors who made the service so powerful in the early years, meaning that it's getting increasingly frustrating to actually use Twitter. It's been adding in "features" that the company thinks will benefit advertisers, but seem to negatively impact its best users. And there are all sorts of questions about how Twitter will survive (though it has a ton of cash on hand).

For a long time I've argued that Twitter made a big mistake in focusing on being a platform instead of a protocol, and the struggles it's facing today are just some evidence supporting that concern. As a "platform" they're so focused on building the business, rather than being useful. And in scaring off or simply blocking or killing their developer community, the fact that the service has gotten more annoying than useful lately, is a real loss. If there were a thriving developer community there would be ample opportunities for those innovations to make the service better. But instead, it's been left to Twitter alone, and the company is failing (badly) in that role.

Eight years ago I saw the power of Twitter. And today, I'm really missing that unique power. I hope it can return soon.

Filed Under: elections, going direct, iowa caucus, social media, sources
Companies: twitter

Telco Giant Vodafone Looked At Journalist's Phone Records To See Who Was Leaking Info To Her

from the that's-illegal dept

Down in Australia, it appears that phone giant Vodafone is facing a bit of a scandal as it's come out that the company went digging into a journalist's phone records after she wrote some stories about security flaws in a Vodafone system. Remember, a decade ago, when there was a big scandal at HP, when it spied on board members to try to stop leaks? That was bad. This is worse. This is directly violating a customers' privacy, just because you're upset about some leaks.

In a 2012 email from then ­Vodafone Hutchison Australia head of fraud Colin Yates to then Vodafone global corporate secu­rity director Richard Knowlton, Mr Yates warns of the “huge risk” to the company if a string of allegations — which he “has no reason to believe” are not factual — “gets into the public domain”.

Of particular concern to Mr Yates was the hacking of the “call charge records and text messages” from the mobile of Fairfax investigative reporter Natalie O’Brien, then a Vodafone customer.

On January 10, 2011, the day after O’Brien broke a story about major security flaws with Vodafone’s Siebel data system — ­including that private call records could be illegally accessed — ­Vodafone investigators had discussions about searching her phone records to find the Vodafone sources for the story.

You can see the story by O'Brien here, in which she revealed that people could access Vodafone customer information, because a source she was talking to had the password to the company's database. This resulted in an investigation by Australia's Privacy Commissioner into Vodafone's security practices. Meanwhile, Vodafone tried to play the whole thing down as a "one-off incident" of someone abusing the password to the system.

Meanwhile, in the background, they were abusing their own systems to try to figure out who was talking to O'Brien -- and were admitting internally that they were misrepresenting the real situation publicly:

Following her story, Vodafone executives allegedly “told the press, the NSW Privacy Commissioner and other high-profile Australian agencies that the breach was a one-off incident”.

Mr Yates wrote to Mr Knowlton: “As you know this is in fact not the case and VHA has been suffering these breaches since Siebel went live and did nothing or very little to close off the weaknesses that allowed them to occur.”

Investigating a privacy breach by breaching the privacy of the reporter who exposed it is... perhaps not the proper response.

Filed Under: australia, journalism, leaks, natalie o'brien, privacy, security, sources, spying
Companies: vodafone

DOJ, Which Once Claimed James Risen's Testimony Was Necessary, Now Tries To Block Other Side From Using Him

from the funny-how-that-works dept

The James Risen saga is basically over, but ended in a bizarre way. As you hopefully recall, this case goes back many years, and involves the DOJ trying to convict Jeffrey Sterling, a former CIA official, of leaking info to Risen. However, Risen has made the compelling case that the DOJ's desire to involve him was an attempt to punish him for earlier work he'd done exposing questionable practices by the intelligence community -- and specifically to force Risen to give up a source, so that future whistleblowers can't trust him. This backfired massively, as Risen fought this entirely, promising never to give up his source, even as the issue went up the Supreme Court (which refused to hear the case), but technically ended with a court saying Risen had to give up his source. Risen still insisted that he would not, and he'd go to jail if he had to. This put Attorney General Eric Holder in a bit of a bind, as he'd promised not to put reporters in jail. Thus, last month, Holder blinked, saying the DOJ would not force Risen to give up his source. However, he was still supposed to testify, just not on that.

Last week, Risen took the stand and basically said absolutely nothing, leading the DOJ on Monday to tell the court that it wanted to "exclude James Risen as an unavailable witness." The filing is fairly amusing, as it admits that Risen is refusing to reveal anything:

Mr. Risen’s under-oath testimony has now laid to rest any doubt concerning whether he will ever disclose his source or sources for Chapter 9 of State of War (or, for that matter, anything else he’s written). He will not. As a result, the government does not intend to call him as a witness at trial. Doing so would simply frustrate the truth-seeking function of the trial.

But as you read it, you realize that the key reason for the filing isn't to admit defeat, but rather to block Sterling's lawyers from using Risen's refusal to testify (or the fact that, in previous filings, the DOJ had said, directly, that without Risen's testimony, they couldn't convict Sterling).

This is true irrespective of whether he is called by the government or the defense—he is unavailable to both parties. The law makes clear that testimony that is not subject to meaningful cross-examination regarding non-collateral matters is antithetical to the purpose of a trial and should be excluded.

And, specifically, please oh please, don't let Sterling's lawyers mention anything about all of this to the jury:

Moreover, since Mr. Risen is not available as a witness on the central issue in the case, the defendant should be prohibited from commenting on Mr. Risen’s failure to appear or suggesting that the government has failed to meet its burden because it did not call him as a witness.

In response, the judge refused the DOJ's request to declare Risen "unavailable" for both sides, and everyone's figuring out how to proceed, with Sterling's lawyers saying that they want to use earlier Risen testimony about how he had multiple sources for his book.

Either way, the DOJ comes out of this looking terrible, and James Risen has made it clear that, if you're a whistleblower, you certainly can trust him not to reveal who you are to the government...

Filed Under: cia, doj, eric holder, evidence, james risen, jeffrey sterline, leaks, sources, whistleblowers

Eric Holder Blinks: Won't Force Reporter James Risen To Reveal Source (Or Send Him To Jail)

from the could-have-done-that-a-while-ago dept

As we noted last month, the feds have started gearing up to try to force reporter James Risen to reveal his source on some CIA reporting from a few years ago. Risen, a Pulitzer Prize-winning journalist, has been facing this threat for years. He's made a compelling case that the whole thing was just to punish him for his reporting. The DOJ had no need for Risen to reveal his source (the DOJ basically knows who it is) and the whole thing is over a really minor issue. It really seemed like the whole thing was set up to see if they could force Risen to cough up the name to guarantee that future whistleblowers wouldn't be able to trust Risen any more.

Well, that backfired big time.

Earlier this week, the judge in the case told the DOJ that it had one week to decide if it was going to call Risen as a witness:

Since June 2,2014, the United States has had over six months to decide whether it will subpoena James Risen to testify at this trial, which is scheduled to begin Monday, January 12, 2015. Because Mr. Risen's presence or absence at the trial will have a significant impact on how the parties present their case, a decision about Mr. Risen must be made sufficiently before trial to enable the parties to prepare adequately.

Combine that with Eric Holder's repeated promise that he wouldn't put a reporter in jail (with the ridiculous loophole that depended on whether Holder decided that reporter was "doing his job" or doing something that Holder decided was not, in fact, "his job") and it should come as little surprise that Holder has now blinked and said that the DOJ will not force Risen to reveal his source. Instead, the DOJ says that if they ask Risen to testify, it'll solely be to "confirm that he had an agreement with a confidential source, and that he did write the book."

It's great that the DOJ is basically no longer threatening Risen with jail, but there is no reason at all that it had to wait so many years and go right down to the judge-imposed wire. Instead, the DOJ let Risen dangle for many years with the threat that he might have to go to jail to protect a source. That's ridiculous and a shameful abuse of power to intimidate a great journalist.

Of course, there's one upside for Risen: if you're a whistleblower looking for a journalist you can trust, it looks like the DOJ just vouched for Risen's credibility in keeping his sources secret.

Filed Under: cia, doj, eric holder, intimidation, james risen, journalists, source protection, sources

Feds Gearing Up To Try, One More Time, To Force James Risen To Reveal His Source

from the showdown dept

Last week, we noted that Attorney General Eric Holder was hinting that the DOJ was near "a resolution" with reporter James Risen -- the NY Times reporter who the DOJ has been harassing and trying to force to give up sources. In a recent interview, Risen makes the rather compelling case, that this effort by the DOJ was never about actually solving any sort of crime (the DOJ knows who did the leak), but rather about totally discrediting and/or punishing Risen for some of his other investigative reports. If the DOJ can undermine the ability of Risen to protect sources, he loses many sources.

Still, at about the same time that Holder was (again) insisting that no journalists would go to jail under his watch and that they were close to a resolution with Risen, the DOJ was exploring the possibility of issuing yet another subpoena on Risen to try (again) to force him to reveal his sources:

Federal prosecutors obtained 100 blank subpoenas last week for use in the upcoming trial of a CIA officer accused of leaking top-secret information to New York Times reporter James Risen.

The move clears the way for the Justice Department to proceed with a new review of whether Risen should be subpoenaed to testify at the trial of Jeffrey Sterling, the CIA employee accused of disclosing details of a CIA effort to set back Iran's nuclear program.

Some of this is procedural. The DOJ put some new rules in place since the last subpoena, and so there's an argument that in order to review the possibility of a new Risen subpoena, the DOJ basically has to do all the initial legwork, and then the DOJ (and Holder in particular) will "review" under the new rules before determining whether to try this silly process again or to back down. Of course, that seems silly. It seems much more viable to just come out and say that they won't subpoena reporters like this and make that a clear and stated rule. But the DOJ seems unwilling to give up this harassment and intimidation tool.

In the end, it seems likely that Holder will fold, but this game of chicken, putting the threat of jail time on Risen to see who blinks first, is really quite disgraceful by the DOJ. So far, Risen has given no indication he intends to comply -- and has held to the same story all along, that he will not give up his sources under any circumstance. Holder, on the other hand, has promised not to put a reporter doing his job in jail. If both men live up to their word, Holder is the one who needs to blink, and it's pretty stupid to go through this whole charade in the meantime.

Filed Under: doj, eric holder, james risen, journalism, leaks, protecting sources, sources, subpoena, whistleblowing