ATTORNEY GENERAL Eric Holder took a step in the right direction recently when he issued revised guidelines to prosecutors regarding the questioning of journalists, closing a loophole that left reporters unprotected. But put in context, his action seems too little, too late. The Obama administration and Holder’s Justice Department have over the past six years relentlessly pursued leakers and whistleblowers — and the journalists who report on them — with unprecedented zeal, all in the name of national security. This overzealous pursuit of leakers within the national security community, and journalists, has threatened to undermine the very liberties that President Obama and Holder have sworn to protect.
In perhaps the most egregious violation not only of a free press but of basic rights to privacy, federal investigators secretly seized two months of phone records for reporters and editors of the Associated Press. (News reports suggested that the timing of the investigation was related to attempts to trace a leak regarding the CIA’s foiling of a terrorist plot in Yemen.) The Holder Justice Department, meanwhile, has indicted twice as many government officials in leak-related cases as all previous administrations combined.
Holder’s retrenchment began last February, with an initial series of revisions to guidelines for prosecutors trying to obstain information from journalists. In those guidelines, he restricted prosecutors’ ability to obtain records in secret, and he expanded the protection for journalists’ notes and e-mails. But the guidelines left a loophole by applying only to journalists engaged in “ordinary newsgathering activities,” without ever defining what those activities are. Now that phrase has been removed, broadening the protection.
Holder’s most recent actions follow the announcement that the Justice Department would not try to force New York Times reporter James Risen to reveal his sources for his 2006 book “State of War,” in which he described a plot to disrupt Iran’s nuclear program. The department was pursuing Risen’s testimony in its prosecution of former CIA official Jeffrey Sterling, the only man within the agency, they say, who would have had access to the information Risen described. Holder had previously said that he will not jail reporters for not revealing sources.
There is always a fine line between national security and the public’s right to know. But as Risen has pointed out, leaks have revealed to the public a variety of antiterror activities conducted in the name of American security — drones, waterboarding, secret prisons, the abuses at Abu Ghraib in Iraq, not to mention the domestic surveillance and wire-tapping revealed by Edward Snowden. This is secrecy, Risen has shown, “layered on top of the war on terror.” It’s a war, Risen has said, in which the national security community itself decides what is “acceptable national security journalism” (for instance, the details of the raid that killed Osama bin Laden), and what is not. “If you took away all the things that the press revealed to begin with in the war on terror,” Risen has said “you would know virtually nothing about the history of the last 13 years.”
Justin Silverman, a lawyer who is executive director of the New England First Amendment Coalition, noted in a recent e-mail interview that while the administration’s policy change is potentially beneficial, “we shouldn’t forget, though, the series of events that led to those revisions, the lack of transparency that still exists within the federal government, and the ongoing challenges this administration poses to journalists and the free flow of information.” That free flow of information is one of the essential elements that distinguishes this country from those who would destroy it, and all of it comes under the heading of “ordinary newsgathering activities.”