Last week’s announcement by Eric Holder that he will resign as Attorney General marks what will hopefully be the beginning of the end of a perplexingly dark period for press freedom in the U.S. As Holder seeks to solidify his legacy, in part based on important civil rights reforms that he helped realize, the aggression with which his Justice Department has gone after journalists and their sources bears considerable reflection. With the nomination of a new attorney general looming, now is the time for a national conversation about just what values the chief law enforcement officer of the United States should seek to uphold.
Despite his public statements about the importance of a free press, during Holder’s tenure as attorney general, the Justice Department and its component agencies — most notably the FBI – went after members of the news media with disturbing alacrity. It issued sweeping secret subpoenas for the telephone records of The Associated Press; vigorously sought to have Pulitzer Prize-winning New York Times reporter James Risen held in contempt for protecting the identity of a source; served a search warrant — illegal in most cases under a federal law that bans authorities from seizing unpublished material intended for public dissemination — for Fox News reporter James Rosen’s emails; secured a federal indictment against freelance journalist Barrett Brown for sharing a hyperlink in the course of his reporting; and enabled the bulk collection of telephony metadata and other information by the National Security Agency.
It was due in part to these abuses that we published The Obama Administration and the Press a year ago this month, the first comprehensive report CPJ has issued on press freedom conditions in the U.S. since the organization was founded in 1981. These issues also helped inspire CPJ’s Right to Report in the Digital Age campaign, a remarkable coalition of news media organizations, human rights groups, journalists, and other individuals who are deeply concerned about the effect U.S. policies are having on the free flow of information around the world.
Because of both the domestic consequences and the international norm-setting functions of U.S. policy, the next attorney general must make reversing the damage that has occurred under Holder a priority. It is not yet clear who the front-runner for the position will be.
One person in law enforcement who has previously defended press freedom is California Attorney General Kamala Harris, who until recently was considered a possible replacement for Holder.
In 2007, as independent journalist Josh Wolf sat in prison for not turning over to a federal grand jury unpublished footage of a protest in which a police officer was assaulted, Harris, the then San Francisco District Attorney, presented a prosecutor’s perspective on why the federal government should respect press freedom. Her op-ed, Law enforcement’s real battles, published in the San Francisco Bay Guardian, deserves to be quoted at length:
At the same time, the U.S. Justice Department is walking down an ominous path by threatening journalists with prison time when they protect their confidential sources. In San Francisco the U.S. attorney has held journalist Josh Wolf in prison since September 2006. Wolf should be released.
[ … ]
Of course, I believe crimes against police officers should be aggressively prosecuted. But I also believe that federal authorities have an obligation to respect the First Amendment. Free speech rights are critical to the work of journalists, university researchers, organized labor, and all of us in a democracy. The Justice Department should recognize the importance of protecting free speech, not only as constitutional and civil liberties issues but as smart public safety policy.
Unfortunately, Harris failed to convince the Justice Department of the wisdom of her position, and Wolf ended up spending 226 days in federal custody without ever being charged with a crime. To this day, Wolf has the dubious distinction of having served more time for not revealing unpublished materials than any other journalist in American history.
While Holder had reportedly stated that he would not jail Risen, Wolf says the situation feels familiar. “We’re just sort of seeing the continuation of what happened under the Bush Administration,” Wolf told CPJ. “If James Risen had been a blogger who wrote a book, would he be in a federal prison right now, or would he be still fighting [contempt] where he is? I’m not convinced that the fact that he’s free isn’t because of his institutional association.” That uncertainty, Wolf says, is underscored by the disconnect between Holder’s words and his actions.
Ultimately, the risk the Justice Department runs by continuing to use its might against the press is that it will suffer the same harm as the news-reading public. “Journalists,” Harris explained in her op-ed, “play a key role in connecting us to individuals with information … If sources fear their confidentiality will not be protected, they will be less likely to come forward to journalists with information that could expose corruption or assist us in solving violent crimes.”
The president and new attorney general have plenty of issues to deal with. If they focus on their job, and on letting the press do its job, over time perhaps the world will become a little more just.