Biden, DOJ Say No More Targeting Journalists, But Aren't Doing Anything To Keep It From Happening Again

from the first-step-toward-doing-better-is-actually-doing-something dept

The tail end of the Bill Barr/Donald Trump DOJ has been marred (I mean… more so…) by a quick succession of reports detailing its targeting of journalists' communications in order to sniff out the source of leaks.

The Trump Administration was plagued by leaks and Trump suggested it would be cool if the FBI would go after some journalists. The FBI apparently also thought this was cool. And so the DOJ sent out subpoenas demanding information about phone calls and emails and pinned gag orders to them, keeping targeted journalists from being notified the government was trying to obtain these records.

The targets were journalists employed at the papers on the top of Trump's shit list: the New York Times and the Washington Post. (The DOJ also targeted a CNN journalist.) And, in a weird twist loaded with the same First Amendment concerns, the FBI tried to obtain records pertaining to readers of a USA Today article about the killing of two FBI agents during a child porn raid.

After the first couple of revelations, President Joe Biden said the DOJ would no longer target journalists.

When asked if Biden would prevent his Justice Department from seeking reporters’ phone records, Biden responded: “I won’t let that happen.”

Unfortunately for Biden, the DOJ's rules absolutely permit it to target journalists. It has done so for years and made quite the negative impression during the Obama years, assisting an administration nearly as interested in hunting down leakers and whistleblowers as Donald Trump's.

Biden's statement suggested his DOJ would do things differently, but the DOJ hadn't actually said anything at that point, and was, in fact, carrying on with some of the Trump DOJ's secretive targeting of journalists. As late as March of this year, the DOJ was still seeking New York Times' journalists' records while swearing the NYT's legal counsel to secrecy.

The DOJ finally stated it wouldn't target journalists a few days after Biden said he wouldn't allow it. The DOJ's spokesperson said the DOJ respected the First Amendment and the free press. But it's apparently a newfound respect, rather than a respect the DOJ has always held.

All well and good except that neither the DOJ nor President Joe Biden have done anything other than say the things that have happened for years will no longer be happening. There hasn't been much action. Margaret Sullivan of the Washington Post points out that all anyone's been given are assurances that will remain empty until someone in the administration is willing to do something about it.

In an opinion piece published over the weekend, Washington Post Publisher Fred Ryan argued that the revelations of recent weeks demonstrate that the Biden administration actually intensified the assault on First Amendment rights before backing down.

He described how, after The Post learned of subpoenas to obtain email information and home, cell and office telephone records of three Post reporters from 2017, the paper’s leadership demanded answers and a meeting with the attorney general — and have so far received none.

Getting some face time with the DOJ would be a good start. But the DOJ isn't going to ditch something it finds useful -- or, at least, convenient -- when engaging in leak investigations. It will continue to target journalists unless it makes it impossible to do so.

Sullivan says the DOJ's Inspector General needs to look into this and publish the findings. More essential, though, is establishing solid deterrents. The DOJ may say it will no longer target journalists, but without meaningful consequences in place for those who violate this promise, it will continue to happen. Suspensions, firings, demotions: these should all be options when prosecutors and investigators cross the line.

Biden and his DOJ need to be better at this than their predecessors. But not just a little better. The DOJ should make this standard operating procedure going forward. And it needs to lock these rules in, preventing future administrations from deciding Constitutional rights are just privileges that can be waived whenever investigators are trying to figure out where the federal government has sprung a leak.

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Filed Under: 1st amendment, 4th amendment, doj, journalists, targeting

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  • icon
    LACanuck (profile), 15 Jun 2021 @ 11:45am

    Maybe the DOJ should issue a memo saying that they can't target journalists? I've heard someplace that memos are considered to be roughly the same level as the actual Consitution when it comes to its impact on the behavior of DOJ prosecutors.

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

  • identicon
    Anonymous Coward, 15 Jun 2021 @ 2:32pm

    I don't expect them to do any better. Like their predecessors, they will want to keep the power for themselves and trust themselves not to abuse it (which is easy when they get to use their own definition of "abuse"). As much as I wish that Trump would be the wake-up call that you can't ignore the inevitable scenario of wrong people gaining power, I can't see politicians giving up any power voluntarily.

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

  • identicon
    Anonymous Coward, 15 Jun 2021 @ 8:39pm

    Bush, Obama, Trump, Biden admins all the same. This is not a party issue, this is a law enforcement / gov apparatus issue. And why should actions taken against journalists cause more outrage than similar actions taken against regular citizens?

    When EU privacy radicals like Max Schrems say that legislation like the CLOUD Act makes it unsafe to allow EU citizen data to be handled by US providers because of insufficient protection against blind subpoenas this is the incontrovertible evidence they are able to cite. It validates seemingly extreme and paranoid POVs.

    When US tech companies get barred permanently from operating in the EU, this is going to be why.

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

  • identicon
    Anonymous Coward, 16 Jun 2021 @ 10:04am

    much easier to go after people who aren't hiding their identity than trying to find a needle in a hay stack by doing, you know, what they're payed to do, like work, like investigate, like gather meaningful information and hopefully gat suspects that can be taken to court. throwing the Constitution under the bus because it suits definitely doesn't make it right to travel the roads thay've been doing but if they and the rest of the security services and the government had their ways, everything would be pushed to one side, until, that is, the rules would have kept them safe! same old story, i want it, i need it but as far as you're concerned, fuck off, you're not entitled to any protection or help!!

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

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