Attorney General Eric Holder’s meeting with journalists and media rights advocates, including me, began in the way many Washington conversations do, with negotiations as to what was to be “off the record.”
The meeting was one of a series Holder has been holding with editors, bureau chiefs, network executives and media rights organizations to discuss his Justice Department’s handling of investigations that involve reporters. Some news organizations boycotted the meetings rather than go along with Holder’s off-the-record demand. I attended as a representative of the New York-based Committee to Protect Journalists, of which I am a board member. If it really leads to some positive changes and not just a public-relations boost for Holder and his boss, President Barack Obama, I think it was worth a try.
The sad fact about the Constitution’s protections of journalists in such cases is how few protections we have. The media and the government are still operating under the legacy of the Supreme Court’s 1972 Branzburg v. Hayes, in which the high court narrowly ruled 5-4 that the First Amendment does not exempt reporters from giving evidence in criminal cases.
Yet, in a bow to free press rights, the court also held that the government must “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.” If that sounds about as clear as an oil spill to you, you’re not alone.
The high court has yet to revisit the issue, but the Justice Department enacted important guidelines after Branzburg. They give the department wide discretion while also trying to set something that sounds like reasonable limits. They require that the attorney general approve all media subpoenas. They must be “as narrowly drawn as possible” and the news organizations must be notified of a subpoena in all but the most exceptional cases so they have time to appeal it in court.
What brings the issue up again are the revelations that earlier this year Justice secretly conducted the most aggressive known federal seizure of media records since the Nixon Administration. The department seized two months of records for 20 telephone lines used by Associated Press reporters and editors.
They also obtained a warrant to search email records at Fox News and a subpoena for the network’s telephone records. Both the AP and Fox cases involved separate leak investigations.
Holder also denied at a May 15 hearing that he had ever been involved in any decision to pursue a criminal investigation of a journalist. He also declared that it would not be “wise policy” to do so. Yet in the affidavit for the Fox News subpoena, the reporter involved, James Rosen, was described as a “co-conspirator” by investigators.
White House spokesman Jay Carney and the Justice Department said that Holder had testified truthfully, since Rosen was not charged. The C-word was made necessary by technical legal rules, the department said. Yet, to journalists and other non-lawyerly folks — like me — being named as “co-conspirator” sounds a lot like the feds were preparing Rosen for possible indictment. Justice officials could hardly throw a harsher chill on the media if they were trying.
Bridging such cultural gaps was one of Holder’s stated reasons for holding the meeting as part of a review ordered by President Obama to come up with proposals for new or improved rules by mid-July.
If this sounds like an inside-baseball concern, limited to media workers, consider for a moment how many questionable government activities we know about thanks to leakers and the reporters who reported their leaks. Notable examples in recent years include warrantless eavesdropping, “renditions” to secret prisons, waterboarding and armed drones.
One of the most commonly raised concerns of media workers, executives and advocates in Holder’s meetings was how and why media should be notified of an investigation, as the department’s guidelines indicate. Then they can negotiate with the government over what should be released and how. Holder acknowledged that the vast majority of such disputes are quietly resolved in this way without going to court.
If the two parties can’t come to an agreement, a secret federal court would provide an objective third party to settle the issue. Judges aren’t perfect, but they provide a valuable assurance that the government must prove its case before stepping on the public’s right to know.
Email Clarence Page at cpage@tribune.com.
