In the past few days there have been a flurry of stories about the Russian plane that crashed in the Sinai peninsula, which investigators reportedly think may have been caused by a bomb. Notably, anonymous US officials have been leaking to journalists that they believe ISIS is involved, and it’s actually a perfect illustration of the rank hypocrisy of the US government’s position on the Edward Snowden disclosures.

Why do US officials allegedly have a “feeling” that ISIS was involved? According to multiple reports, US intelligence agencies have been intercepting ISIS communications discussing “something big” in the region last week.

CNN published a report on Tuesday based on anonymous sources that ISIS was likely responsible despite the fact that “no formal conclusion has been reached by the U.S. intelligence community and that U.S. officials haven’t seen forensic evidence from the crash investigation”:

The signs pointing to ISIS, another U.S. official said, are partially based on monitoring of internal messages of the terrorist group. Those messages are separate from public ISIS claims of responsibility, that official said.

Huh, weren’t we told by Snowden’s critics that it was terrible and traitorous when sources tell journalists that the US has surveillance capabilities that, in addition to collecting information on millions of innocent people, also target alleged terrorists?

Just today, the Daily Beast reported this:

The U.S. intelligence community intercepted a signal from an ISIS-affiliated group in the Sinai Peninsula before a Russian jet crashed there on Saturday that warned of “something big in the area,” two officials told The Daily Beast. An adviser familiar the U.S. intelligence said a call was made between members of Wilayat Sinai, which a U.S. official said Thursday was one of the “most potent” branches of ISIS. The conversation did not mention downing an airplane, but a defense official said comments could be tied to the crash. (emphasis mine)

Here the leak is even more specific: the little-known name of the subgroup targeted by surveillance (Wilayat Sinai), including their general location (Sinai) and the time of the interception (sometime before the crash).

And just in case anyone wants to pretend that every other surveillance capability of US intelligence is classified but somehow this investigation is not, the New York Times clarified in their article on Wednesday:

“There’s not one thing that we know what is saying to us, ‘This is a bomb,’ ” said one of the American officials, who like others spoke on the condition of anonymity because they were discussing intelligence considered preliminary and classified. “It’s just all indications of this or that, and not clear right now.” (emphasis mine)

So many people criticized Edward Snowden for allegedly leaking information showing that the US targeted suspected terrorists in Pakistan and Yemen with their surveillance capabilities. Keep in mind, Snowden did not publish any of this information himself; it was the decision of major newspapers that found the information was newsworthy. It was also vague information that was months or years old, and in the vast majority of cases not the focal point of the stories — which was the information collected on millions of innocent people at the same time.

In this case, US officials have no problem at all leaking classified information about top secret surveillance capabilities which target terrorists, since it fits within their narrative. It’s also more specific information that’s more timely, involving an investigation that is still ongoing. Even the most virulent commentators who claim that Snowden was a traitor for leaking classified information had no problem publishing similarly leaked information about this potential terrorist attack.

We can almost be certain that there will be no leak investigation and no one will be punished — despite the fact that by the government’s own interpretation of the law, this is clearly illegal. (Not that we believe anyone should be prosecuted for leaking, but if the US is going to prosecute, they should do so uniformly and not cherry-pick who they want.)

This has happened over and over since the Snowden revelations started and we can only assume it’ll happen again. That’s because the US government’s policy on leaks has never really been about enforcing the law, or that leaks are so damaging to national security. It’s about controlling the story the media tells.

Reposted from the Freedom of the Press Foundation

Over the weekend, the US government announced that special forces soldiers entered Syria to conduct a raid that killed an alleged leader of ISIS, Abu Sayyaf. In the process, anonymous US officials leaked classified information to the New York Times that’s much more sensitive than anything Edward Snowden ever revealed, and it serves as a prime example of the government’s hypocrisy when it comes to disclosures of secret information.

Here’s how the New York Times described how the US conducted this “successful” raid:

The raid came after weeks of surveillance of Abu Sayyaf, using information gleaned from a small but growing network of informants the C.I.A. and the Pentagon have painstakingly developed in Syria, as well as satellite imagery, drone reconnaissance and electronic eavesdropping, American officials said. The White House rejected initial reports from the region that attributed the raid to the forces of President Bashar al-Assad of Syria.

Read that carefully and pretend it was Snowden who leaked this information, instead of nameless Pentagon spokesmen. US officials would be screaming from the rooftops that he leaked extremely timely and sensitive intelligence (it was literally only hours old), that he will cause specific terrorists to change their communications behavior, and most importantly, he put the lives of informants at risk. (Note: none of Snowden’s leaks did any of these things.)

Yet despite the fact that the ISIS raid was discussed on all of the Sunday shows this week, no one brought up anything about this leak. Contrast that with Snowden’s revelations, where government officials will use any situation to say the most outlandish things possible in an attempt to smear his whistleblowing?regardless of their basis in reality. Take former CIA deputy director and torture advocate Mike Morrell, for example, who is currently on a book promotion tour and has been preposterously suggesting that Snowden’s leaks somehow led to the rise of ISIS.

For the sake of hypothetical argument, let’s take Morrell’s claims at face value. Let’s put aside the fact that, despite their “sky is falling” rhetoric, the US government has consistently refused to release specific information showing that terrorists have “changed their behavior” due to the Snowden leaks, and that terrorists were sophisticated users of encryption for more than a decade before anyone heard Snowden’s name. Let’s also ignore that the US government has been caught blatantly exaggerating how leaks have “damaged” national security in the past, and that officials have already admitted their nightmare scenarios in this case have not actually come to pass.

Here is what Morrell told NPR when asked about Edward Snowden and the damage he thinks he caused to national security:

So I can’t get into specifics, but I’ll tell you that there was a program that he disclosed that was vital to the United States’ ability to see what terrorists are doing. And they all changed their communication habits because of that disclosure – al-Qaida in Pakistan, al-Qaida in Yemen and al-Qaida in Iraq, which morphed into ISIS. So there is no doubt in my mind that that change in behavior on the part of al-Qaida in Iraq and ISIS contributed to ISIS’s rise.

And here’s what he said on 60 Minutes the same week:

“What Edward Snowden did has put Americans at greater risk because terrorists learn from leaks and they will be more careful, and we will not get the intelligence we would have gotten otherwise.”

Every single thing Morrell said applies to what US officials leaked this weekend, if not more so. But since the leak about the ISIS raid was meant to glorify the Obama administration, instead of embarrassing it or exposing wrongdoing, everyone in the US government will pretend like it never happened.

Either leaks exposing the “sources and methods” of surveillance are damaging to national security or they are not. Administration officials can’t have it both ways.

Republished from the Freedom of the Press Foundation

Former CIA director David Petraeus received his sentence yesterday for the sweetheart plea deal he struck with the Justice Department after he was discovered to have leaked highly classified information to his biographer and lover Paula Broadwell. As was widely anticipated, the celebrated general received no jail time and instead got only two-years probation plus a $100,000 fine. (As journalist Marcy Wheeler has pointed out, that’s less than Petraeus receives for giving one speech.)

The gross hypocrisy in this case knows no bounds. At the same time as Petraeus got off virtually scot-free, the Justice Department has been bringing the hammer down upon other leakers who talk to journalists?sometimes for disclosing information much less sensitive than Petraeus did. It’s worth remembering Petraeus’ leak was not your run-of-the-mill classified information; it represented some of the most compartmentalized secrets in government. Here’s how the original indictment described the eight black books Petraeus handed over to Paula Broadwell:

The books “collectively contained classified information regarding the identifies of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings? and discussions with the president of the United States.”

While Petraeus’ supporters claim none of this information was ever released to the public after he leaked it to Broadwell, that does not matter in leak cases. You can just ask former CIA officer John Kiriakou, who disclosed the names of two supposedly undercover CIA officers to a researcher. The names were never published, but Kiriakou still got thirty months in jail. 

Let’s also not forget that David Petraeus lied to FBI officials when they questioned him about his leak. For a reason the Justice Department never explained, he wasn’t charged for lying at all. As the New York Times pointed out today, “Lying to federal agents is a felony that carries a sentence of up to five years in prison. The Justice Department has used that charge against terrorists, corrupt politicians and low-level drug dealers.” Just apparently not former CIA directors.

Petraeus’ deal comes just days after federal prosecutors recommended another sentence to a convicted leaker who worked for the same Central Intelligence Agency?Jeffrey Sterling. In Sterling’s case the prosecutors are calling for twenty-four years of prison time. Sterling was convicted of leaking information to Pulitzer Prize-winning reporter James Risen about a botched CIA mission that occurred almost two decades ago. The lawyer for former State Department official Stephen Kim, currently in jail for leaking innocuous information to Fox News’ James Rosen, has also objected to the “profound double standard” in Petraeus’ case versus Kim’s.

To be fair, the rank-and-file at the FBI and Justice Department seem to recognize how egregious the hypocrisy surrounding Petraeus’ case is: while Attorney General Eric Holder himself signed off on the lenient deal, he reportedly did so over strenuous objections from FBI and DOJ officials.

Ultimately, no one should be charged under the Espionage Act for leaking information to journalists, but if the government is going to bring charges against low-level officials, it has a responsibility to do so against high-ranking generals as well. And actually, the Justice Department’s reasoning behind not seeking a trial for Petraeus is quite telling for just how unjust the Espionage Act is. As the New York Times reported:

[W]ithout a deal, the Justice Department would have faced the prospect of going to trial against a decorated war hero over a disclosure of secrets that President Obama himself said did not harm national security. Plus, a trial would require the government to reveal some of the classified information.

The Justice Department’s fear about an embarrassing trial is one the most egregious aspects of Espionage Act prosecutions against leakers and whistleblowers: defendants can be found guilty even if there was no damage to national security at all. It’s not one of the elements of the crime, so prosecutors don’t have to prove it. By forgoing a trial because they are afraid of graymail, the government is also basically saying to future leakers “if you’re going to leak classified information, make sure it’s something really classified.” 

It’s possible that Petraeus’ deal was so egregious that this could be good news for other leakers. The Daily Beast’s Kevin Mauer argued as much earlier today:

Petraeus’s relatively light punishment will likely have lasting ramifications on future leak cases, national security lawyers said. They argue the government is cutting its own throat by offering him a more lenient sentence in the wake of harsher penalties to other leakers and creating a double standard that can be exploited by defense attorneys in future cases.

However, given the government’s unrelenting pursuit of Sterling, there is little chance of this having a lasting effect. Unfortunately, the Petraeus case will go down in history as one of the most blatant examples of the inherent unfairness of leak trials and the two-tiered system of justice that whistleblowers often face. 

Reposted from the Freedom of the Press Foundation

Attorney General Holder raised some eyebrows earlier this week when answering a question about his Justice Department’s notorious crackdown on leaks, and by extension the press, most notably saying this about its notorious pursuit of New York Times reporter James Risen, while claiming the DOJ did nothing wrong:

If you look at the last case involving Mr. Risen, the way in which that case was handled after the new policies were put in place [is] an example of how the Justice Department can proceed.

The District Sentinel aptly took apart most of Holder’s comments, and they also provoked a stinging rebuke from Risen himself last night on Twitter. However, I think the facts of Risen’s case deserve a closer look to see just how unbelievable Holder’s statement is.

Let’s recap: since the very start of the Obama administration (read: for SIX years), the Justice Department was trying to subpoena James Risen. It fought for him to testify at a grand jury of CIA officer Jeffrey Sterling, which he refused to do, and when they were rejected by the court, it fought to have him testify in Sterling’s trial. They fought Risen on this all the way up to the Supreme Court.

Also, keep in mind, while the “new” media/leak guidelines that Holder bragged about are certainly a step forward, the old guidelines that applied to Risen’s case should have protected him just the same from the start?if they were actually enforced. He doesn’t get to pretend the preceding five and a half years didn’t happen just because he stregthened the Justice Department’s rules after public protest.

The case cost Risen and his publisher an untold fortune in legal fees, dominated his life, took away from time he could’ve spent reporting, and likely cost the taxpayers millions of dollars.

Along the way, we found out that the government had spied on virtually every aspect of James Risen’s digital life from phone calls, to emails, to credit card statements, bank records and more. (By the way, we still have no idea how they got this information. That’s secret.)

The Justice Department argued in court that not only was there no reporter’s privilege whatsoever — either embedded in the First Amendment or in Fourth Circuit common law — but also that journalists protecting sources was analogous to protecting drug dealers from prosecution.

As a result, the Justice Department got an appeals court to destroy the previously established reporter’s privilege in the Fourth Circuit. So now all journalists in the Fourth Circuit — which covers Virginia and Maryland where the vast majority of national security sources live and work — will have no protection if the government comes after them in future cases.

After all this (along with a large public outcry), the government decided to drop its pursuit of James Risen. And of course were able to easily convict Jeffrey Sterling anyways, using evidence gleaned from digital surveillance.

Now the Justice Department wants a pat on the back. While it is unequivocally excellent news that Risen will not be forced into jail, the DOJ’s behavior in this case was and still is deplorable. It has done damage to long-term press freedom rights that will be very hard to undo, and the idea that this should be looked at as a “model” for future leak investigations is troubling to say the least.

Reposted from the Freedom of the Press Foundation

In a surprising development, the New York Times reported late Friday that the FBI and Justice Department have recommended felony charges against ex-CIA director David Petraeus for leaking classified information to his former biographer and mistress Paula Broadwell. While the Times does not specify, the most likely law prosecutors would charge Petraeus under is the same as Edward Snowden and many other leakers: the 1917 Espionage Act.

It remains to be seen whether Petraeus will actually be indicted (given how high-ranking government officials so often escape punishment), and the decision now sits on Attorney General Eric Holder’s desk. But this is a fascinating and important case for several reasons.

First, all of Petreaus’s powerful D.C. friends and allies are about to be shocked to find out how seriously unjust the Espionage Act is?a fact that has been all too real for many low-level whistleblowers for years.

By all accounts, Petraeus’s leak caused no damage to US national security. “So why is he being charged,” his powerful friends will surely ask. Well, that does not matter under the Espionage Act. Even if your leak caused no national security damage at all, you can still be charged, and you can’t argue otherwise as a defense at trial. If that sounds like it can’t be true, ask former State Department official Stephen Kim, who is now serving a prison sentence for leaking to Fox News reporter James Rosen. The judge in his case ruled that prosecutors did not have to prove his leak harmed national security in order to be found guilty.

It doesn’t matter what Petraeus’s motive for leaking was either. While most felonies require mens rea (an intentional state of mind) for a crime to have occurred, under the Espionage Act this is not required. It doesn’t matter that Petraeus is not an actual spy. It also doesn’t matter if Petraeus leaked the information by accident, or whether he leaked it to better inform the public, or even whether he leaked it to stop a terrorist attack. It’s still technically a crime, and his motive for leaking cannot be brought up at trial as a defense.

This may seem grossly unfair (and it is!), but remember, as prosecutors themselves apparently have been arguing in private about Petraeus’s case: “lower-ranking officials had been prosecuted for far less.” Under the Obama administration, more sources of reporters have been prosecuted under the Espionage Act than all other administrations combined, and many have been sentenced to jail for leaks that should have never risen to the level of a criminal indictment.

Ultimately, no one should be charged with espionage when they didn’t commit espionage, but if prosecutors are going to use the heinous Espionage Act to charge leakers, they should at least do it fairly and across the board?no matter one’s rank in the military or position in the government. So in one sense, this development is a welcome one.

For years, the Espionage Act prosecutions have only been for low-level officials, while the heads of federal agencies leak with impunity. For example, current CIA director John Brennan, former CIA director Leon Panetta, and former CIA general counsel John Rizzo are just three of many high-ranking government officials who have gotten off with little to no punishment despite the fact we know they’ve leaked information to the media that the government considers classified.

So hopefully Eric Holder does the right thing and indicts Petreaus like he has so many others with far fewer powerful connections. As Petraeus himself once said after CIA whistleblower John Kiriakou was convicted for leaking: “There are indeed consequences for those who believe they are above the laws.” 

But if Petraeus does get indicted, perhaps we should start a new campaign: “Save David Petreaus! Repeal the Espionage Act!”

Republished from Freedom of the Press Foundation

We’ve long known the Justice Department’s stance on transparency has been hypocritical and disingenuous. But they’ve really outdone themselves this time. Last week, the agency secretly helped kill a bipartisan Freedom of Information Act (FOIA) reform bill that was based word-for-word on its own policy.

First, a little background: In a surprise to some, the very modest FOIA Improvements Act died in Congress last Thursday, despite virtually unanimous support in both houses. The bill was completely uncontroversial. It merely would have upgraded agencies’ ability to accept FOIAs electronically and codified existing policy?mainly President Obama’s now infamous January 20, 2009 memo in which he ordered federal agencies to operate under a “presumption of openness.”

All Speaker John Boehner had to do on the last day before Congress adjourned for the year was bring the bill up for a vote, and it would’ve been whisked through to the President’s desk. A similar bill had already passed the House unanimously earlier in the year.

Yet for some unknown reason at the time, he didn’t. On Tuesday, the Washington Post reported on the inside story behind the last-minute death of the bill, and the blame centers on the Justice Department:

According to House aides, some lawmakers balked at the legislation because several agencies, including the Justice Department, warned that those making information requests would use the “foreseeable harm” requirement as the basis for frequent lawsuits.

The “foreseeable harm” section referred to by the Post would force federal agencies to justify withholding information if they wished to do so. Essentially, they would have to show the information would cause “foreseeable harm” if released. Not exactly a tall order. But what makes the Justice Department’s objection so shocking is that this “foreseeable harm” provision would not deviate at all from the Justice Department’s own policy. In fact, it was based on it.

In a March 19, 2009 memo to all federal agencies, Attorney General Eric Holder himself wrote that the Justice Department would carry out Obama’s aforementioned transparency order by rescinding the Bush DOJ’s more restrictive FOIA rules and designating new ones. From that moment on, Holder declared:

[T]he Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.

Now read full text of the provision in the just-killed FOIA reform bill that the Justice Department allegedly objected to:

An agency shall withhold information under this section only if a) the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection or other provision of law; or b) disclosure is prohibited by law

As can be seen, the two passages are virtually identical. How does the Justice Department think this provision will lead to more lawsuits it would have to defend if they’re not supposed to be defending those lawsuits in the first place?

The Justice Department is objecting to making its own supposed policy the law, and confirms what many have long believed: the agency does not want to?or have to?comply with its own FOIA rules.

The DOJ has repeatedly been criticized for failing to enforce, and downright ignoring its own FOIA guidance for years, and their stance on transparency in general has been incredibly hypocritical. For example, Holder has claimed he wanted the torture report to be public as soon as possible, meanwhile fighting in court to prevent the release of any documents on its own torture investigation. Likewise, he’s claimed the Justice Department supports a federal shield law so reporters can protect their sources, while at the same time destroying the already-existing reporter’s privilege in the Fourth Circuit

But this most recent development is just beyond the pale.

We had a feeling that the Justice Department was behind the initial delay in getting the bill passed months ago after receiving a tip from a knowledgeable source. In July we filed a FOIA request for emails between the Justice Department and the offices of the FOIA bill’s co-sponsors John Cornyn and Patrick Leahy that discuss the agency’s position on the bill. We’ve been waiting six months and still have gotten no response.

Now we know why.

Reposted from Freedom of the Press Foundation

60 Minutes, which has been harshly criticized for running puff pieces for the NSA and FBI recently, is at it again. Last night, they ran two unrelated yet completely conflicting segments?one focusing on FBI Director Jim Comey, and the other on New York Times reporter James Risen?and the cognitive dissonance displayed in the back-to-back interviews was remarkable.

First up was 60 Minutes correspondent Scott Pelley’s interview with FBI Director Jim Comey. 60 Minutes aired the first part of the interview last week, which ran 14 minutes and did not contain a single adversarial question. This time, Scott Pelley asked him at least asked a couple softballs about civil liberties, although the primary one Comey just refused to answer.

The main focus of the piece, however, was Comey’s supposed commitment to “the rule of law.” “That’s a principle over which James Comey is willing to sacrifice his career,” Pelley explains to the audience. He then proceeded to re-tell the infamous “hospital bed” scene from 2004 during the Bush administration, where Comey, then deputy attorney general, threatened to resign unless Bush altered the original NSA warrantless surveillance program. Bush relented a bit and so Comey stayed on as deputy attorney general for more than a year afterwards.

Comey is portrayed as the hero, who stopped illegal surveillance from going forward. What Comey did was certainly admirable, but this episode happened in March 2004 and only pertained to a small portion of the NSA’s illegal activities. The NSA’s illegal warrantless wiretapping program (as the public knew it) was first exposed more than eighteen months later in December 2005. 60 Minutes explains this in the very next segment but couldn’t apparently put two and two together: Jim Comey was presumably also responsible for signing off on the illegal program the New York Times exposed after his hospital bed protest.

During this segment, 60 Minutes interviewed James Risen about the Obama administration’s war on leaks and described the scoop he is most famous for: his Pulitzer Prize-winning story exposing that same warrantless wiretapping program.

Risen explains to 60 Minutes correspondent Lesley Stahl that the NSA was not only gathering metadata without a warrant on Americans in 2005, but the content of phone conversations as well. And as Stahl herself points out?and as former NSA chief Michael Hayden basically admits in the segment?this was in direct violation of the 1978 law the Foreign Intelligence Surveillance Act, which required court orders to conduct such spying.

Critically, Risen’s first story in December 2005 makes it clear the warrantless wiretapping of Americans was ongoing at the time. And we learned just last year as part of the Snowden revelations that Comey’s hospital protest was over Internet metadata, not illegal eavesdropping on phone calls.

So to sum up: the government was breaking the law in December 2005. This is the program that Comey had presumably signed off on after the much-talked-about incident and he remained deputy attorney general. Yet Comey is still uncontroversially portrayed as a man dedicated to “the rule of law.”

This information was readily available to 60 Minutes, as it’s in the most well-known recounting of the hospital bed scene done by reporter Barton Gellman for the Washington Post and in his book The Angler in 2007. As Barton Gellman reported in 2007, Comey forced some changes with his potential resignation in 2004, but “much of the operation remained in place.”

“Imagine you’re doing ten things one day, and the next day you’re only doing eight of them,” an unnamed official told Gellman in The Angler. “That’s basically what happened here.”

Cross posted from the Freedom of the Press Foundation.

Attorney General Eric Holder announced he would resign yesterday, after serving as the nation?s top law enforcement official since President Obama came into office in 2009. Holder will leave behind a complex and hotly debated legacy at the Justice Department on many issues, but one thing is clear: he was the worst Attorney General on press freedom issues in a generation, possibly since Richard Nixon?s John Mitchell pioneered the subpoenaing of reporters and attempted to censor the Pentagon Papers.

Holder presided over the largest legal crackdown on journalists? sources in American history. Under his watch, the Justice Department prosecuted more sources and whistleblowers under the Espionage Act than all previous administrations combined, and many of those cases directly led to surveillance of reporters. In one, the Justice Department secretly subpoenaed twenty Associated Press phone lines, gathering information on over one hundred AP reporters. In another, the Justice Department accused Fox News reporter James Rosen in court documents of being a ?co-conspirator? and ?aiding and abetting? State Department employee Stephen Kim in violating the Espionage Act. Both moves by the Justice Department were personally approved by the Attorney General.

After a loud public backlash, the Justice Department recently tightened its media guidelines, but that hasn?t stopped them from attempting to force one of the nation?s best national security reporters, New York Times? James Risen, into jail for refusing to testify against an alleged source. In Risen?s case, the Justice Department caused the most damage to reporter?s privilege in decades when it convinced the Fourth Circuit to do away with the privilege in its jurisdiction altogether. Shamefully, Holder?s Justice Department argued in front of the Court of Appeals that not only did Risen not qualify for reporter?s privilege, but the privilege did not exist at all, literally comparing reporters who protect sources who tell them about sensitive information to receiving drugs from a drug dealer and refusing to talk about it.

Despite all this, Eric Holder had previously promised that, ?As long as I?m attorney general, no reporter who is doing his job is going to go to jail.? How the Justice Department could pursue contempt of court charges against Risen but keep him out of jail was unknown. But now that Holder is stepping down, the Justice Department is not obligated to abide by his promise.

The Justice Department?s pursuit of Risen has led to a petition signed by over 100,000 citizens, and over twenty Pulitzer Prize winners issued statements condemning it. The Justice Department has still refused to drop its pursuit.

And often forgotten in the Justice Department?s awful crackdown on the press, is its sprawling, four-year grand jury investigation into WikiLeaks for publishing classified State and Defense Department documents in 2010 and 2011, under a ?conspiracy to commit espionage? theory where WikiLeaks may or may not have asked source Chelsea Manning to send them the documents. Many have referred to it as the largest investigation of a publisher in American history.

Despite the fact that the investigation has been widely condemned by legal experts and Constitutional scholars?former Times general counsel James Goodale said Holder might as well be investigating WikiLeaks for ?a conspiracy to commit journalism??recent court documents show the grand jury is still active.

Any indictment would leave all US newspapers in the perilous position of constantly under threat of prosecution when publishing supposedly ?secret? information. But even without an indictment, the open-ended investigation chills WikiLeaks? work and anyone caught in its wide net.

In addition, the Justice Department’s handling of the Freedom of Information Act (FOIA) and its aggressive tactics in court to keep basic information from journalists and the public has been deplorable, especially given Holder’s promise to reform FOIA when he first came into office. Holder is also attempting to expand the controversial ‘state secrets’ privilege to new lengths, after promising to reform that as well.

The next attorney general, whoever it is, will have a lot of issues on his or her plate. But better respecting the rights of reporters and the First Amendment should be at the top of that list.

Reposted from the Freedom of the Press Foundation

Two weeks ago, the DOJ Inspector General released a report on the FBI’s use of National Security Letters (NSLs)?the controversial (and unconstitutional) surveillance instruments used to gather personal information of Americans without any prior oversight from a judge. In a little-noticed passage buried in the report, the IG describes how NSLs have been used on journalists in the past, and indicates that the FBI can currently circumvent the Justice Department’s media guidelines to do so in the future.

When and precisely how can they do so? Well, apparently that’s classified.

First, some background: In July, after a torrent of criticism that the Justice Department (DOJ) was targeting reporters in the wake of the Associated Press and Fox News scandals, Attorney General Eric Holder issued new guidelines for DOJ that tightened the rules for when they could secretly obtain records from reporters. Notably, the guidelines excluded National Security Letters.

This is critical because past IG reports, as well as the new one, have harshly criticized the FBI for circumventing the old media guidelines and using NSLs to gain access to reporters’ records on at least three occasions. Earlier this year Pulitzer Prize winner Barton Gellman revealed his telephone records had once been targeted by an NSL.

As the New York Times reported when the new guidelines were issued in July:

There is no change to how the F.B.I. may obtain reporters’ calling records via “national security letters,” which are exempt from the regular guidelines. A Justice spokesman said the device is “subject to an extensive oversight regime.”

What is the “extensive oversight regime”? The IG report discusses it, but the FBI has brazenly redacted the whole thing. From page 178 of the new report:

The above passage is referencing the FBI’s response to the IG’s criticism of a leak investigation in which a journalist’s telephone records were accessed with an NSL. 28 C.F.R. ? 50.10 refers to the media guidelines. Reading between the redactions, it seems that Attorney General approval may required in some classified circumstances but not in others. The FBI thinks those circumstances should be secret.

Worse, it seems the FBI has so far ignored another IG recommendation regarding the use of NSLs against reporters. From page 192 of the report:

Unfortunately, the redactions in this section make it nearly unintelligible, but it’s clear from the reference to the DOJ’s media guidelines in the second paragraph that they are writing about leak investigations and journalists.

It should be noted from the very first footnote of the 196-page report that the IG strongly objected to many of the redactions within the report, including both information that was made public in previous reports and information they “believe is important to the public’s understanding of the FBI’s compliance with NSL requirements.”

And that’s the crux of the issue: how can the public be expected to have confidence in a so-called “extensive oversight regime”, without any transparency or inkling of what it is? All too often the government has expected us to trust that such authorities are not being abused, while their own investigations continually uncover problems with compliance.

Beyond the fact that the whole NSL statute was ruled unconstitutional last year (the ruling is on hold pending appeal), journalists?at the bare minimum?deserve to know when the FBI thinks it can secretly conduct surveillance on them without court approval. As the IG states, this has significant First Amendment implications and it’s a travesty that the FBI continues to keep their policies for spying on the press a secret.

Reposted from Freedom of the Press Foundation

The US State Department announced the launch of its third annual “Free the Press” campaign today, which will purportedly highlight “journalists or media outlets that are censored, attacked, threatened, or otherwise oppressed because of their reporting.” A noble mission for sure. But maybe they should kick off the campaign by criticizing their own Justice Department, which, on the very same day, has asked the Supreme Court to help them force Pulitzer Prize winning New York Times reporter James Risen into jail.

Politico’s Josh Gerstein reports that the Justice Department filed a legal brief today urging the Supreme Court to reject Risen’s petition to hear his reporter’s privilege case, in which the Fourth Circuit ruled earlier this year that James Risen (and all journalists) can be forced to testify against their sources without any regard to the confidentiality required by their profession. This flies in the face of common law precedent all over the country, as well as the clear district court reasoning in Risen’s case in 2012. (The government’s Supreme Court brief can be read here.)

Associated Press reporter Matthew Lee commendably grilled the State Department spokesman about the contradiction of its press freedom campaign and the James Risen case at today’s briefing on the State Department initiative, repeatedly asking if the government considers press freedom issues in the United States the same way it does aboard. The full transcript is below.

As Gerstein noted, “The Justice Department brief is unflinchingly hostile to the idea of the Supreme Court creating or finding protections for journalists,” and if the Justice Department succeeds “it could place President Barack Obama in the awkward position of presiding over the jailing of a journalist in an administration the president has vowed to make the most transparent in history.”

The government does mention it is working with Congress to craft a reporter’s shield bill, which should give you some indication that the proposed bill is at best a watered-down, toothless version of what many courts have offered journalists for decades, and that would be no help to James Risen—the exact type of reporter that we should be attempting to protect the most. It’s important to remember that in Risen’s case, the government has previously analogized reporter’s privilege to a criminal receiving drugs from someone and refusing to testify about it.

We’ll have more on both the shield law and the Risen case soon, but it’s clear that the US government still refuses to walk the walk when providing journalists the protections it says it believes in.

Oh, and while we’re on the subject, maybe the State Department can use its “Free the Press” campaign to put pressure on one of its staunchest allies, the United Kingdom, which is using terrorism laws to suppress acts of journalism—something the State Department has condemned many times in the past.

Here’s the full interaction between the AP’s Matthew Lee and the State Department spokesperson Jennifer Psaki on James Risen and US press freedom at today’s press briefing:

Reposted from Freedom of the Press Foundation