Eric Holder Should Condemn James Clapper Calling Journalists 'Accomplices'

from the and-obama-should-fire-clapper dept

We already pointed out James Clapper's ridiculous prepared remarks that referred to journalists as "accomplices" with Ed Snowden. In that post, we noted that Eric Holder had gone through a bit of controversy a year ago when it was revealed that the DOJ had claimed to a court that a reporter was involved in a crime in order to get access to his sources -- and that Holder had promised that the DOJ would not target journalists. As Holder said at the time:
"The Department has not prosecuted, and as long as I’m attorney general, will not prosecute any reporter for doing his or her job," Holder told the Senate Appropriations Committee on Thursday.

DOJ's goal, Holder said, is to "identify and prosecute government officials who jeopardize national security by violating their oaths, not to target members of the press or discourage them from carrying out their vital work."
He has further stated (in a separate Congressional hearing) that the DOJ is already using these new guidelines, which make it clear they are not to target journalists.

And then Clapper makes his idiotic statement.

That leaves open the obvious question, asked by Trevor Timm at the Freedom of the Press Foundation: will Eric Holder condemn Clapper's remarks?
If Holder wants to stay true to his word, the Justice Department should repudiate Clapper’s remark immediately. Journalists do not become “accomplices” or “co-conspirators” by reporting newsworthy information. They’re just good journalists.
Oh yeah, and this:
Journalism is not a crime. On the other hand, lying to Congress is.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Ninja (profile), Jan 30th, 2014 @ 4:49am

    In Capitalist America...

    Journalism is a crime. On the other hand, lying to Congress is not.

    No? Why is Clapper allowed to lie to Congress and come unscathed while journalists reporting the Constitutional abuses are threatened? Maybe upholding the Constitution is the crime now?

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 5:44am

    he wont do that because he is of the same opinion as Clapper. that is until he needs the journalists to run a campaign perhaps get people to vote for him!

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 6:00am

    Re:

    "Maybe upholding the Constitution is the crime now?"

    Nope - talking to authority is.

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    DannyB (profile), Jan 30th, 2014 @ 6:06am

    The DOJ's mission

    DOJ's goal, Holder said, is to "identify and prosecute government officials who jeopardize national security by violating their oaths, not to target members of the press or discourage them from carrying out their vital work."

    The DOJ's goal is to make itself look good by persecuting individuals who game the system and make greedy companies with stupid business models look bad by exposing the emperor's lack of attire. The DOJ proudly colludes with partner companies and institutions of higher learning to accomplish this mission.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 6:13am

    There is no "journalist immunity" in our laws to my knowledge. Even in the case of testimony, there is no "journalist privilege" (though some jurisdiction have considered the possibility, the majority have not).

    While the reaction here is understandable (even expected), it is easy to conceive of circumstances where a journalist can cross the line from being a journalist into an active participant in what is otherwise an illegal act...i.e., becomes an accomplice. Frankly, from what I have garnered from numerous sources that are attempting to relate factual information, it seems a close call.

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    Rikuo (profile), Jan 30th, 2014 @ 6:16am

    Re:

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Just Sayin', Jan 30th, 2014 @ 6:25am

    High horse

    Mike, I think you need to step off your high horse here. Journalists (and yes, "journalists" as well...) are not beyond breaking the law to get a story out, and are not beyond helping of others breaking the law so they can get material. Journalists are not free of sin or somehow sainted such that they can do no wrong.

    The concerns here are that apparently what has been "released" from the Snowdon pile is only a small amount of the total material, and that a number of journalists are holding copies of the rest of it. Since we know that the material was obtained illegally, and we know the source, it is fairly questionable why a journalist (or ANY CITIZEN) would be allowed to keep hold of these files.

    Quite simply, there is a line that a journalist can cross from only reporting the news towards creating the news themselves. That the journalists are not releasing additional documents, allowing Snowdon to coordinate with them to release stuff for maximum impact seems well beyond just reporting the story. If they have the documents, they should report on them, and not wait for a third party to tell them when they can or cannot run a story.

    They are acting like co-conspirators, and not just reporting the facts.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 6:41am

    Re:

    "a journalist into an active participant in what is otherwise an illegal act...i.e., becomes an accomplice"

    Is it illegal to report upon the exposure of an illegal activity? I suppose the recent declaration that what was once illegal is now "ok" might affect the answer to this question. Using this as an excuse to dodge the issue is simply politics, right?

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 7:01am

    Expose wrongdoing...and no more. Classic journalism. While I am not aware of any circumstances that might result in a legal action against the journalist, I long ago learned weird, totally unexpected situations can arise that may change the general rule.

    Actively encourage the garnering and transfer of various types of information so that it can/will be published? Answer not at all clear, though one possible outcome is being deemed an accomplice to the performance of an illegal act.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 7:12am

    Being one of the former CEO's of Booz Allen James Clapper gets a free pass to say and do whatever he wants ,Clapper has immunity as do all high ranking officials to any and every crime or injustice they commit .. Journalists however are subject to the law or just plain accusations.
    This is the world we live in now, and unless a significant part of the American people take some sort of action rather than just blogging or chatting about it ,there will be no changes in the foreseeable future.
    a well known and highly respected person could make all the difference.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Brazenly Anonymous, Jan 30th, 2014 @ 7:12am

    Re:

    Congress shall make no law ... abridging the freedom ... of the press ...


    It is one of our oldest and highest laws, which applies to journalistic sources under the chilling effects doctrine. So I ask you, if the ability to decline to provide sources is not covered by the protection of the press, then what journalistic privilege was not covered by freedom of speech?

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 7:26am

    Re: Re:

    No, in large measure it does not apply to a journalist being legally authorized to retain his/her sources in confidence. A journalist-source privilege, if it exists in some US jurisdiction, would be most unusual.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Brazenly Anonymous, Jan 30th, 2014 @ 7:30am

    Leakers gonna leak

    The irony of all of this is that the persecution of journalists involved in leaks creates a greater threat to US field agents from the act of leaking.

    Once someone working for the government has uncovered an activity they consider abhorrent and decided to do something about it, they have four options:
    1) Leak to the regular press
    2) Leak to press hostile to the US
    3) Direct document dump
    4) Defection

    Under scenario 1, the press will generally approach the government before publishing, which provides the agency three ways to mitigate the danger to field agents. They can negotiate for a deferral of publishing until all active investigations can be closed out. They can convince the press to impose redactions. Finally if the press insists on publishing compromising information, they can recall the agent and drop the investigation.

    Under scenario 2, the government must rely on the judgement of the journalist to impose important redactions. This is actually in the best interests of even a somewhat hostile journalist, as it increases their credibility with their readers. So at least someone will be filtering the material for those truly damaging pieces of information.

    Under scenario 3, the government must scramble to analyze the material before their opponents do, in order to shut down compromised investigations. This is clearly far from ideal, however, there at least remains the ability for them to do so.

    Scenario 4 is something wholly different. The leaker does not choose scenario 4, but is drawn into it only when the other three are not an option. Convinced that the government is carrying out evils on its people, and finding no way to address this, the would-be leaker becomes heavily susceptible to manipulation by a handler working for a foreign intelligence service. Once they defect, they can funnel information out of the US, potentially for years before being discovered. Under scenario 4, there is no chance to protect agents and they will die.

    Clapper's vendetta against the Snowden leaks, and any government policy change to facilitate it, is therefore a demonstrably greater risk to US agents then anything so far revealed as part of those leaks.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Brazenly Anonymous, Jan 30th, 2014 @ 7:31am

    Re: Re: Re:

    I ask you again, if the ability to decline to provide sources is not covered by the protection of the press in the first amendment, then what journalistic privilege was not covered by freedom of speech?

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    astroboi, Jan 30th, 2014 @ 7:37am

    Forget about deporting Justin Bieber. Deport this guy. There must be some dictatorship that would accept him.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 7:41am

    Re: Re:

    Congress shall make no law ... abridging the freedom ... of the press

    As far as I know, the press in that statement is the printing press. That is it prohibits congress from censoring any printed publication; they obviously did not anticipate radio, television, film and the Internet. It does not, and should not be specifically applied to journalists, but be taken as a prohibition on congress limiting anybodies ability to publish.
    Treating journalists as a privileged class of people is a quick road to censorship, as it can become a protection for registered journalists, with threat of removing their registration used to make them toe the governments line, while allowing anybody elses speech to be controlled.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 7:42am

    I'm reminded

    Of a story where Grant had to order Sherman not to shoot journalists as spies.

    Sherman responded that journalists are worse than spies, because they'll tell anyone.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    edpo, Jan 30th, 2014 @ 7:56am

    Scumbags

    Holder, Clapper, Alexander, Obama, Feinstein.... All scumbags. Not a moral bone in any one of them.

     

    reply to this | link to this | view in thread ]

  19.  
    icon
    fuunu (profile), Jan 30th, 2014 @ 8:00am

    re

    look up the Pentagon Papers. The Supreme Court already ruled that journalists can't be charged when they report on classified matters.

    "New York Times Co. v. United States, 403 U.S. 713 (1971), was a landmark decision by the United States Supreme Court on the First Amendment. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censorship or punishment"

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Brazenly Anonymous, Jan 30th, 2014 @ 8:13am

    Re: Re: Re:

    It may originally* have been intended as such, but the courts have interpreted the freedom of speech to cover more than just speaking, and thus must, according to years of case law, establish a specific meaning for freedom of the press.

    Note that in general a case can be made against compelled testimony of any kind under both the freedom of speech and the fifth amendment. Also note that courts have upheld a journalistic privileged based on a dissenting Supreme Court opinion.

    As to your absurd argument that journalists would have to be reserved as a separate class of citizen, the courts would instead devise a test to determine journalistic purposes. Thus, even someone who typically does not act as a journalist could invoke the protections upon demonstrating that their interest was in the broad dissemination of information.

    *Originally, the entire bill of rights was designed to protect the States from the Federal government, with State constitutions being responsible for furnishing citizen rights. So the original meaning is largely irrelevant at this point.

     

    reply to this | link to this | view in thread ]

  21.  
    icon
    John Fenderson (profile), Jan 30th, 2014 @ 8:14am

    Re: Re: Re:

    As far as I know, the press in that statement is the printing press.


    You know incorrectly. The clear intent, and this is uncontroversial and supported by every court that has had the occasion to comment on it, is that the "press" means "mass communications", not the printing press specifically.

    Treating journalists as a privileged class of people is a quick road to censorship


    It isn't that there's some class of people called "journalists" that get special privileges. It's the act of journalism that is a protected right. It applies just as much to you or me as it does to people who are employed by news agencies.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 8:39am

    Re:

    'There is no "journalist immunity" in our laws to my knowledge.'

    Yah. There is no longer any supreme law of the land, formerly known as "The Constitution".

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    David, Jan 30th, 2014 @ 8:59am

    Re:

    Why is Clapper allowed to lie to Congress and come unscathed

    Because what's good for the goose is good for the gander. Eric Holder is on record for multiple perjury before congress himself. Tasked with the slightly conflict-of-interest laden job of investigating his own perjury, he let himself off without consequences.

    So why would he do something different to Clapper? You have to smoke out the whole lot. You can't expect them to turn on themselves while they can still dupe and rob the public.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 10:33am

    Re: Re:

    That doesn't just apply to confidentiality of sources. That also includes laws that would make public dissemination of information (which is what freedom of the press - with a lower case "p" not and uppercase one mind you - is all about) a criminal act or even tying it to a criminal act. Any federal law that is on the books that would cause a person to be charged with a crime for publishing information would automatically become unconstitutional.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 10:41am

    Re: Re: Re: Re:

    I think he was actually agreeing with you. I think he was saying that IF you interpreted freedom of the press to only apply to professional journalists it would be a quick road to censorship and he clearly states that it does not only apply to journalists or printed material but rather publication in general by whatever means.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 10:44am

    Re: Re: Re: Re:

    He was actually agreeing with you as well. He was stating that because it referred to the printing press but did they did not forsee other forms of communication, it actually refers to all forms of publication by anyone and not just journalists. I think both of you just misread his comment.

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 10:45am

    Re: Re: Re: Re: Re:

    At least this one, I mean.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    vastrightwing, Jan 30th, 2014 @ 11:37am

    We are all enemies of the state

    If we are not one of them, we are against them. Pretty simple to understand.

    "journalists" who are not criminals work for the state. The rest are criminals who have not been caught.

    Since we (citizens) are being spied on: we are the enemy. Is there any doubt?

    Has the state done anything for the citizens without regard for itself? Personally, I can't think of anything. Roads? Nope, commerce. Internet/radio/satellite/TV? Nope, telecommunications companies. FCC? Income for the state. Healthcare? No. Tax on the citizens. Property rights? No. You don't own property here; you pay taxes (rent). Non rent payment, the state takes its property back. Food? No, Monsanto and big Agra is taking that away from us. Freedom of speech? No! Snowden is illustrating that pretty well. Guns? They are mostly a non issue for the state, they can overpower that pretty easily. Civil liberties? Again, the justice system is stacked in favor of corporations. We are forced into "agreements" we can't fight against. Welfare? The state is out of cash. Freedom? That depends on what you mean by freedom. I say, we haven't had that in years. Safety? If anything we have to fear our own state. Movement? Tried to fly lately? TSA anyone? It's all theater. War? Again, no! The problem is war is not done at our behest. It's done against our will. Destruction? No. The state destroys property for its own benefit, never ours. Education? Been to public school lately? We can't afford it, what we get is indoctrination. Currency? LOL, the Federal Reserve? We're in this financial mess now due precisely to the uncontrolled theft the Federal Reserve has infested on us. QE? Fractional banking? Call it leveraged debt.

    And now, the state wants to control our retirement money (MyRa)? Do I even need to say why this is a horrible idea for citizens? Oh, for the state it's wonderful!

    The answer is person to person. Simple. People doing things for people, not the state. The more we isolate the state from our lives, the better off we become.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 4:55pm

    Re:

    Are you suggesting journalists "encourage" excessive publishing right up AND OVER the current line of illegality??

    On the other hand...

    Totally EXPECTED 21st century situations --like large organisations, secretly spying on criminal networks en masse-- fully undermine any classic journalistic approach of exposing merely the wrongdoing yet stopping short of publishing the fully suite of leaked docs lest 1 such doc one day results in ultimately touch-and-go (thus negative) legal outcomes for that publisher, journalist, or their (ex)employer!

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Agony Mouse, Jan 30th, 2014 @ 5:11pm

    Re: We are all enemies of the state

    If you're busy you'll want to crowdsource the management of that retirement fund of yours.

    If you post your access details here then TD commenters can take a look and advise you I'm sure.

    Until then you better DYI. Or pay a multinational. Or your gov taxes.

    Roads are quick and easy. Got any tar? Just you & your buddies decide on what you want, don the overalls, and go make it so. If it's a clear improvement, nobody will bother taking you with a court challenge. We're all too time poor. Having too much fun. Because internet.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous Coward, Jan 30th, 2014 @ 10:08pm

    Re:

    Of course, truth is the ultimate treason in the empire of lies.

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Brazenly Anonymous, Jan 31st, 2014 @ 1:14pm

    Re: Re: Re: Re: Re:

    I can see why you might read it that way, but we actually were debating whether the freedom of the press applies to shielding journalistic sources.

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Brazenly Anonymous, Jan 31st, 2014 @ 1:20pm

    Re: Re: Re:

    Freedom of speech covers publication just fine under the court interpretation. This presents the court with the problem of needing to provide a meaning for freedom of the press, as its case law has established limitations preventing any interpretation that renders the law redundant.

    The laws suppressing publication draw on the specific waiving of rights by the individual targeted. The constitution does not provide any ban with regard to this.

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Anonymous Coward, Feb 3rd, 2014 @ 4:45am

    Re: Re: Re: Re: Re:

    I'm inclined to agree...

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This