Attorney General Nominee Seems Willing To Let The DOJ Jail Journalists Over Published Leaks

from the getting-nothing-more-here-than-a-changed-nameplate dept

Jeff Sessions did everything the president wanted him to do: roll back civil rights investigations, get tough on immigration, amp up the War on Drugs, blame everyone but law enforcement for spikes in crime. It didn't matter. The president shitcanned Sessions because he recused himself from the DOJ's investigation of Trump's Russia-related activities.

His replacement, William Barr, is undergoing the formality of a confirmation hearing. It's assumed there's no way he can blow it. But he's trying.

Barr would be no improvement over the departed Sessions. Barr thinks marijuana should be illegal everywhere. He's a fan of expanding executive power. As attorney general under George Bush Sr., he ordered phone companies to comply with DEA demands for millions of call records originating in the United States, laying the groundwork for the NSA's Section 215 collections.

He also doesn't seem to care much for the First Amendment. As attorney general, he pushed for a Constitutional amendment banning the burning of American flags in the wake of a Supreme Court decision offering First Amendment protection for this form of expression.

Thirty years later, Barr seems just as reluctant to respect the First Amendment. During the confirmation hearing, Sen. Amy Klobuchar lobbed what should have been a softball to the AG nominee. Moving on from the appalling murder of Washington Post journalist Jamal Khashoggi by members of the Saudi government, Klobuchar asked if the Justice Department would jail journalists for doing their jobs.

Instead of a quick "No," or a quickly-qualified "Yes, but only under the most extreme circumstances," Barr responded with a disturbingly long "ummm" and an uncomfortable silence. When Barr finally broke his silence, his answer was worse than his silence.

I can conceive of situations where…you know, as a last resort… and where a news organization has run through a red flag or something like that, knows that they're putting out stuff that will hurt the country… there could be a situation where someone could be held in contempt.

This is bad news for the free press. Jeff Sessions already began laying the groundwork for easier surveillance and prosecution of journalists by the DOJ. The standards alluded to by Barr ("policies in place") have been there for more than two decades. As they stand now, the DOJ has to exhaust all other investigative methods before demanding information from journalists and, if it plans to subpoena news agencies, it has to give them advance notice and work with them to minimize First Amendment intrusions.

Facing a rash of leaks following the election of Donald Trump, the DOJ has changed course. Under Sessions' (and now Rod Rosenstein's) supervision, the policies are being rewritten to make it much easier for the government to target journalists during investigations.

Multiple sources familiar with the ongoing DOJ review tell me that it has two main goals. The first is to lower the threshold that prosecutors must meet before requesting subpoenas for journalists’ records; the second is to eliminate the need to alert a media organization that Justice intends to issue a subpoena.

Given Barr's answer here, it's safe to assume he'll pick up where Sessions left off when he becomes attorney general. That's bad news for journalists and bad news for the First Amendment in general. Barr could have reaffirmed the DOJ's commitment to upholding the Constitution but instead indicated the DOJ will prioritize protecting the government over protecting the people it serves.

Filed Under: 1st amendment, attorney general, doj, free speech, journalists, leaks, press freedom, source protection, whistleblowing, william barr


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  • identicon
    Baron von Robber, 17 Jan 2019 @ 10:05am

    Seems that they just don't get that a free press is not there to serve them, but to serve the rest.

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

  • identicon
    Anonymous Coward, 17 Jan 2019 @ 10:12am

    let's face it, there are more cunts in charge of things in the USA than anywhere else!!

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

    • identicon
      David, 17 Jan 2019 @ 2:16pm

      Re:

      let's face it, there are more cunts in charge of things in the USA than anywhere else!!

      I think you misunderstand what "Watch my lips: no more Texas!" was about.

      In related news, watch your language.

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

  • icon
    btr1701 (profile), 17 Jan 2019 @ 10:18am

    Amendments

    > He also doesn't seem to care much for the 1st Amendment.
    > As attorney general, he pushed for a constitutional
    > amendment banning the burning of American flags in the
    > wake of a Supreme Court decision offering 1st Amendment
    > protection for this form of expression.

    > Thirty years later, Barr seems just as reluctant to
    > respect the 1st Amendment.

    Advocating for an amendment to the Constitution does not constitute 'disrespect' for the part of the Constitution that is proposed to be amended.

    That's how it's *supposed* to work. While you may not agree with amending the Constitution to carve out protection for the flag, such an amendment would not be a violation of anything nor a 'disrespect' for the 1st Amendment. A successfully passed amendment-- considering how hard it is to accomplish-- represents the overwhelming will of the people and isn't that what this whole country is supposed to be about?

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

    • icon
      Cdaragorn (profile), 17 Jan 2019 @ 10:36am

      Re: Amendments

      Proposing a change to the law that disrespects the values upheld by the law you wish to change is absolutely disrespect for that law. The fact that you're following the legal process for changing the law doesn't remove the disrespect for the law from your actions.

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

      • icon
        Bamboo Harvester (profile), 17 Jan 2019 @ 10:52am

        Re: Re: Amendments

        Unless, of course, it's YOU that disagrees with current Law.

        I haven't checked lately, but I'm pretty sure it's illegal to enslave people because they're black, and it's legal (once again) to serve alcoholic beverages.

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

        • identicon
          Anonymous Coward, 17 Jan 2019 @ 12:33pm

          Re: Re: Re: Amendments

          And you don't think that indicates disrespect for laws permitting slavery, and for the 18th Amendment, respectively?

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

          • icon
            Bamboo Harvester (profile), 17 Jan 2019 @ 1:14pm

            Re: Re: Re: Re: Amendments

            No, it doesn't indicate "disrespect", but disagreement with the laws.

            Or do you feel that the SCOTUS Justices who publish their Dissenting Opinion of SCOTUS rulings are disrespecting the law?

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

            • icon
              Stephen T. Stone (profile), 17 Jan 2019 @ 3:39pm

              Advocacy for the re-legalization of slavery may not disrespect the laws that say “slavery is illegal”, but it sure as hell disrespects the people, of any race/ethnicity, whose ancestors fought and died to make sure enslaved people had the right to live as free people.

              Arguments about the minimum wage are political opinions. Advocacy for the re-legalization of slavery—which would disproportionately affect people of color if it were to ever happen—is bigotry that someone wants to hide behind the veneer of it being “just a political opinion”. You do yourself a disservice by being racist-adjacent, so maybe rethink whether you want to walk down that road.

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

    • icon
      Bamboo Harvester (profile), 17 Jan 2019 @ 10:50am

      Re: Amendments

      Agreed.

      The whole article seems to want to prove that his quoted response shows he won't respect the Constitution.

      But if you read that quote, parsed down it simply says "That would depend on the case", which is true.

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

      • identicon
        Anonymous Coward, 17 Jan 2019 @ 11:25am

        Re: Re: Amendments

        The press should never been the target for the investigation unless how they obtained the information was illegal. Such as hacking a government website. But if they even make the publishing of information illegal, it will only push the sources to anonymous locations. Can the government really do anything if the illegal leak is a shared document on a public cloud storage that is shared with everyone?

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

        • icon
          Bamboo Harvester (profile), 17 Jan 2019 @ 1:20pm

          Re: Re: Re: Amendments

          Your first sentence sums up the problem.

          A "leak" which is illegal (as opposed to a leak that is not breaking any laws) means that by not revealing the source of that leak, the "journalist" (or anyone else who has been told) is complicit as an Accessory.

          The First does NOT say the "journalist" may not publish. It also doesn't say they don't have to reveal the source of their information.

          The question isn't if the publication is illegal, but if withholding the source is.

          And the paraphrased quote of "It depends on the case" is fully correct. If a "journalist" won't disclose their source on a government sex scandal, nobody much cares. If they're withholding their source on a leak of military action, most people *should* care.

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

          • icon
            Anonymous Anonymous Coward (profile), 17 Jan 2019 @ 2:07pm

            Re: Re: Re: Re: Amendments

            "The question isn't if the publication is illegal, but if withholding the source is."

            By making that the question one creates a slippery slope. What is the dividing line? Wherever the investigator/prosecutor wants in a particular case? It has been, for most of US history, that the media can protect their sources, and only in very unusual circumstances does that veil get removed.

            When every leak is considered to be 'national security' even when it might be only 'administration or bureau embarrassment', then the line has been crossed. When the purpose of whistleblower protections has been abrogated into negotiated whistleblower punishment, then the whistleblowers will feel that they have no choice but to try and leak anonymously, and sometimes rely on journalists to aid in that process. The journalist needs to know, so they don't spew unsubstantiated nonsense. Then what is the virtue of revealing the source when the issue is embarrassment rather than something actually bad.

            And this is without thinking through the notion that any leaker that wanted to do harm would be turning the information over to some other government secretly, rather than getting it published for the whole world to see.

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

    • identicon
      Anonymous Coward, 17 Jan 2019 @ 12:23pm

      Re: Amendments

      Advocating for an amendment to the Constitution does not constitute 'disrespect' for the part of the Constitution that is proposed to be amended.

      Kind of like there would be nothing wrong with advocating for an amendment allowing the return of slavery.

      That's how it's supposed to work.

      I see.

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

      • icon
        Bamboo Harvester (profile), 17 Jan 2019 @ 1:23pm

        Re: Re: Amendments

        Wrong? Why would advocating be "wrong"? Because you don't agree with it?

        I'm sure people who advocated for and against every change to the Constitution over the last couple of centuries didn't agree with their opposition either.

        But that's the process.

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

        • icon
          Stephen T. Stone (profile), 17 Jan 2019 @ 3:30pm

          Re: Re: Re: Amendments

          Why would advocating be "wrong"?

          You tell me why advocating for the re-legalization of slavery in a country with a history of slavery and racism—up to and including a civil war being fought over the right to keep slaves—would not be considered “wrong”, and I’ll tell you just how wrong your opinion is, Rep. King.

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

          • identicon
            Anonymous Coward, 18 Jan 2019 @ 10:36am

            Re: Re: Re: Re: Amendments

            You tell me why advocating for the re-legalization of slavery in a country with a history of slavery and racism

            Uhh, slavery is legal right now, as long as it's punishment for a crime; and it really is happening. One could argue that racism still plays a role, given the demographics of the prison population.

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

  • icon
    btr1701 (profile), 17 Jan 2019 @ 10:22am

    Contempt

    > Klobuchar asked if the Justice Department would jail
    > journalists for doing their jobs.

    If a journalist is jailed for contempt, wouldn't it be the court that does it, not the Justice Department? I'm trying to think of a situation where the Justice Department could hold someone in jail for not doing what it wanted absent a court order to do so.

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

    • identicon
      Anonymous Coward, 17 Jan 2019 @ 10:32am

      Re: Contempt

      He must have been thinking of one of those movies he saw... it was part of his "lobbying" welcoming gift from the **AA's

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

  • identicon
    Anonymous Coward, 17 Jan 2019 @ 10:34am

    Free Press is one of the checks and balances

    Since yet another check or balance has been removed, the government is no longer valid and must be re-rolled.

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

  • icon
    Thad (profile), 17 Jan 2019 @ 11:18am

    I liked Ken White's summary on All the President's Lawyers best. I'm paraphrasing from memory, but it went something like, "Barr is terrible, but he's terrible in a conventional way, as opposed to a norm-violating Trump Administration way."

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

  • identicon
    Anonymous Coward, 17 Jan 2019 @ 12:26pm

    "putting out stuff that will hurt the country…"

    And since Trump is good for the country, anything anti-Trump is obviously bad for the country.

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

    • icon
      Bamboo Harvester (profile), 17 Jan 2019 @ 1:26pm

      Re: "putting out stuff that will hurt the country…"

      Unfortunately, that seems to be the attitude of late.

      Clinton and Obama did little I agreed with. Little, not everything.

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

  • identicon
    Anonymous Coward, 17 Jan 2019 @ 2:15pm

    Seemed like a reasonable thought out response rather than a quick politicized answer that it seems some were wanting. Isn't nice to have someone think about an answer?
    We all could think of a situation where a similar scenario might occur and be questionable and possibly illegal. Would you say it could never ever happen? Imagine a "reporter" with ties to some nefarious government organization in the scenario he mentioned. He didn't say every journalist doing their job, he tried to give a specific extreme example.
    Jeesh

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

    • icon
      Thad (profile), 17 Jan 2019 @ 2:22pm

      Re:

      Imagine a "reporter" with ties to some nefarious government organization in the scenario he mentioned.

      Okay, done.

      Do I have to imagine the crime you think this scare-quotes-reporter should be charged with, too?

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

      • identicon
        Anonymous Coward, 18 Jan 2019 @ 11:56am

        Re: Re:

        Sorry I didn't mean to scare you Thad. I wanted to imply that it might be someone who claimed to be a reporter but their primary role was something more clandestine.
        In a case where someone simply uses the term reporter to avoid all legal ramifications.
        I will try to restrict my use of "scary" punctuation to a minimum.

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

    • icon
      Stephen T. Stone (profile), 17 Jan 2019 @ 3:26pm

      Re:

      In Barr’s own words:

      I can conceive of situations where…you know, as a last resort… and where a news organization has run through a red flag or something like that, knows that they're putting out stuff that will hurt the country… there could be a situation where someone could be held in contempt.

      Can you spot the one phrase in his answer that makes said answer sound as if he is willing to jail any journalist for publishing something the government does not appreciate being published?

      [Hint: Look for the vague phrase that can be twisted to mean virtually anything he wants it to mean for the sake of giving a reason to toss a journalist in jail.]

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

  • identicon
    R, 17 Jan 2019 @ 3:17pm

    When telling the truth is a crime, you are ruled by criminals.

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

  • identicon
    dickeyrat, 18 Jan 2019 @ 4:21am

    Good Students, that GOP!

    The ruling Rethugnican cabal has learned from the best, their group-hero Putin, who's done a pretty-much bang-up good job reining in the Russian press--which was actually looking free there, for a few years after the Soviet collapse. Now many of those journalists have learned not to overly antagonize the powers that be. And that's exactly how our Orange Dictator and his knuckle-dragging supporters want it to be here in the U.S. After all, the Free Press is the "enemy of the people". Freedom is oppression, and ignorance is strength! And in closing, Sieg Heil MAGA!!

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

  • identicon
    Anonymous Coward, 18 Jan 2019 @ 4:41am

    Iran-Contra fixer

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

  • identicon
    Personanongrata, 30 Jan 2019 @ 1:36pm

    Birds of a Feather Flock Together - Trump, Obama, Bush, Clinton

    Jeff Sessions already began laying the groundwork for easier surveillance and prosecution of journalists by the DOJ.

    Horse-cocky, Jeff Sessions was not responsible for laying the ground work for easier surveillance and prosecution of journalists by the DOJ

    The ground work was laid during the George W Bush administration (the origin of US surveillance state begins with the National Security Agency in 1952) and then abused by the Obama administration.

    Italicized/bold text was excerpted from the website wikipedia.org a report titled -

    President's Surveillance Program:

    The President's Surveillance Program (PSP) is a collection of secret intelligence activities authorized by the President of the United States George W. Bush after the September 11 attacks in 2001 as part of the War on Terrorism. Information collected under this program was protected within a Sensitive Compartmented Information security compartment codenamed STELLARWIND.[1]

    The last presidential authorization expired on February 1, 2007, but some of the collection activities were continued, first under the authority of the Protect America Act of 2007, passed in August of that year, and then under the FISA Amendments Act (FAA), which was enacted in July 2008.[2]

    One part of the program was the Terrorist Surveillance Program, which authorized warrantless wiretapping of international communications where one party to the communication was believed to be affiliated with al-Qaeda. The other activities have reportedly included data mining of e-mail messages[3] and telephone call detail records in the NSA call database.[4]

    https://en.wikipedia.org/wiki/President%27s_Surveillance_Program

    Italicized/bold text was excerpted from the website nytimes.com a report titled -

    If Donald Trump Targets Journalists, Thank Obama:

    If Donald J. Trump decides as president to throw a whistle-blower in jail for trying to talk to a reporter, or gets the F.B.I. to spy on a journalist, he will have one man to thank for bequeathing him such expansive power: Barack Obama.

    Criticism of Mr. Obama’s stance on press freedom, government transparency and secrecy is hotly disputed by the White House, but many journalism groups say the record is clear. Over the past eight years, the administration has prosecuted nine cases involving whistle-blowers and leakers, compared with only three by all previous administrations combined. It has repeatedly used the Espionage Act, a relic of World War I-era red-baiting, not to prosecute spies but to go after government officials who talked to journalists.

    Under Mr. Obama, the Justice Department and the F.B.I. have spied on reporters by monitoring their phone records, labeled one journalist an unindicted co-conspirator in a criminal case for simply doing reporting and issued subpoenas to other reporters to try to force them to reveal their sources and testify in criminal cases.

    More significantly, the Obama administration won a ruling from the Fourth Circuit Court of Appeals in my case that determined that there was no such thing as a “reporter’s privilege” — the right of journalists not to testify about their confidential sources in criminal cases. The Fourth Circuit covers Virginia and Maryland, home to the C.I.A., the Pentagon and the National Security Agency, and thus has jurisdiction over most leak cases involving classified information. That court ruling could result, for example, in a reporter’s being quickly jailed for refusing to comply with a subpoena from the Trump administration’s Justice Department to reveal the C.I.A. sources used for articles on the agency’s investigation into Russian hacking during the 2016 presidential election.

    https://www.nytimes.com/2016/12/30/opinion/sunday/if-donald-trump-targets-journalists-than k-obama.html

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


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