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.

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

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  1. 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 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]

    Italicized/bold text was excerpted from the website 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. k-obama.html

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