Media lawyers and investigative journalists are warning that reporters continue to be at threat of subpoena from the historically aggressive Obama administration, despite Eric Holder’s tightening of federal guidelines for leak inquiries.
The US attorney general announced on Wednesday that he was amending Justice Department regulations to give extra protection from official investigation to all reporters, not only those engaged in “ordinary newsgathering activities”. The inclusion of the word “ordinary” in previous guidelines had caused concern among news organizations that it could be used to single out journalists focused on the most highly sensitive subjects, notably national security.
The tightening of the guidelines was welcomed on Thursday by media experts and journalists. Kevin Goldberg, legal counsel to the American Society of News Editors, said the extension of protections from subpoena to all newsgathering activities, not just so-called ordinary ones, was an important move. He said that as Holder prepares to leave his post as the country’s top justice official, he was “laying down a marker for his successor, and that’s helpful”.
But he pointed out that insofar as they’re internal guidelines, as opposed to legislation, Holder’s reforms lack legal punch and could be overruled at any time. “Ultimately, these are just words on paper with very little force of law behind them,” he said.
The Obama administration has been singularly driven in its pursuit both of official leakers and of reporters who publish the contents of such leaks. It has prosecuted more people under the 1917 Espionage Act than all previous presidencies combined.
It also launched aggressive leak investigations involving the reporting of the Associated Press and Fox News that attracted widespread condemnation.
It has been particularly criticised for its relentless pursuit of New York Times reporter James Risen, whom prosecutors had threatened to call as a witness in the trial (which started this week) of Jeffrey Sterling, a former CIA official who is accused of having leaked details about a covert operation in Iran. The subpoena carried with it the threat of imprisonment for Risen were he to refuse to disclose the source for material in his 2006 book, State of War.
On Monday, the Justice Department announced it would not call Risen to testify after all. But journalists and media experts warn that the damage has already been done.
They point to the fact that Holder personally approved an appeal of the Risen case to the US Court of Appeals for the Fourth Circuit. In July 2013, a three-judge panel of that court ruled hat Risen must testify at Sterling’s trial.
That ruling was effectively given the strength of precedent when the US supreme court refused to consider the case last June.
Lowell Bergman, a prominent investigative journalist, said the impact of the ruling on all reporters engaged in investigations relating to criminal trials would be severe and long-lasting, and that Holder’s legacy as he enters his final stretch at the Justice Department should be seen in that light. “It’s encouraging to see that he’s changed his perspective, and that he seems now to be indicating that what has happened under his watch is not something he’s proud of. But it maybe too late – the damage has been done,” he said.
Steven Aftergood, who leads a project on government secrecy at the Federation of American Scientists, said Holder’s decision to grant additional safeguards to reporters under the new guidelines had to be seen in the shadow of the Risen ruling. “His magnanimity towards the press is easy for him as he won the case at the Supreme Court. The Justice Department is acting from a position of strength,” he said.
He added that with the advent of digital media, “the government’s capacity to uncover and trace leaks is far greater than it was in the past.”
Most criminal cases involving official leaks are prosecuted in federal court, and reporters are particularly vulnerable to subpoena as a result of there being no federal shield law. As a result, reporters working with confidential sources are left “with no control over what’s going to happen to them.”
Holder has certainly assuaged some of the media ill-feeling generated by his tough stance on leak investigations. But his record remains controversial in many people’s eyes.
“I would have preferred that he spent his time prosecuting big-money financial criminals rather than going after the news media,” Bergman said. “There’s no way to undo what he’s done.”
