Alex Pareene writes: Eric Holder feels bad. The attorney general of the United States has been criticized quite a bit since basically the day he was announced as Obama’s pick for the job, but lately that criticism has come from liberals, who are upset with the Justice Department for excessive snooping on journalists. Holder, according to Daniel Klaidman in the Daily Beast, now feels really personally sorry about the whole treating reporters like criminals thing, because he still thinks of himself as a good liberal.

Holder signed off on the search warrant issued for Fox News reporter James Rosen. The warrant justified seizing Rosen’s records by claiming that his handling of his source, a State Department contractor, may have constituted a violation of the Espionage Act. The AG apparently did not feel bad about this until he read in a newspaper that he had done so:

But for Attorney General Eric Holder, the gravity of the situation didn’t fully sink in until Monday morning when he read the Post’s front-page story, sitting at his kitchen table. Quoting from the affidavit, the story detailed how agents had tracked Rosen’s movements in and out of the State Department, perused his private emails, and traced the timing of his calls to the State Department security adviser suspected of leaking to him. Then the story, quoting the stark, clinical language of the affidavit, described Rosen as “at the very least … an aider, abettor and/or co-conspirator” in the crime. Holder knew that Justice would be besieged by the twin leak probes; but, according to aides, he was also beginning to feel a creeping sense of personal remorse.

Holder’s supposed “remorse” is risible. He didn’t realize how far he’d gone until he read about what he’d done in the Washington Post? Whoops! I accidentally criminalized news-gathering. (At least someone still reads the paper in print.) It is a bad sign of bubble-inhabiting when an administration doesn’t understand the ramifications of its actions until it reads about itself in the press.

I once compared Daniel Klaidman to a crow feeding off a rotting carcase but suggested that that might be unfair to crows. Even so, sycophantic behavior, as much as it expresses itself through an apparent desire to please others (Klaidman’s description of Holder’s angst must surely have pleased the attorney general), tends to be driven by the shameless pursuit of self interest.

At a time when plenty of journalists in Washington must be feeling like betrayed lovers, there are others whose desire to stay in bed with their sources is so strong they are apparently willing to forgive anything.

However contrite officials like Holder might act, and however outraged the press might present itself, each side can be in little doubt that their incestuous relations will continue.

PR Newswire: Today the ACLU sued the FBI in a freedom of the press lawsuit on behalf of two editors at a libertarian online magazine. After learning that their Bay Area-based site, Antiwar.com, was the subject of FBI surveillance, Eric Garris and Justin Raimondo sought the documents the government had compiled on both them and the site. After a year, the FBI has failed to produce any documents, so Garris and Raimondo do not know the full extent of the surveillance and whether it is ongoing. The editors are asking the FBI to turn over relevant documents, and to stop collecting records of their constitutionally protected speech.

“Freedom of the press is a cornerstone of our democracy, whether it’s the Associated Press or Antiwar.com,” said Julia Mass, staff attorney at the ACLU of Northern California. “Government surveillance of news organizations interferes with journalists’ ability to do their jobs.”

Garris and Raimondo discovered FBI documents [details in question begin at page 62] that showed a record of surveillance of the online magazine. In these documents an FBI analyst recognized that Antiwar.com’s content is constitutionally protected speech, but still recommended opening an investigation and continued FBI monitoring of the site. [Continue reading…]

Antiwar.com says this is one more example of post-9/11 government overreach, and a stark reminder that the First Amendment has been treated as little more than a speed bump on the road to a government surveillance state. The lawsuit is particularly timely, considering recent scandals in which the Department of Justice secretly seized months of journalists’ phone records at the Associated Press, and did the same and more to a FOX News reporter, while the IRS is acknowledging it singled out conservative groups that criticize the government for extra scrutiny.

Suddenly, the press is more aware than ever that the state has the ability to secretly monitor its activities, heretofore thought of as constitutionally protected from government interference and intimidation.

“Freedom of the press is a cornerstone of our democracy, whether it’s AP or Antiwar.com,” said Julia Harumi Mass, staff attorney for the American Civil Liberties Union of Northern California, which is representing Antiwar.com in the case. “FBI surveillance of news organizations interferes with journalists’ ability to do their jobs as watchdogs that hold the government accountable.”

The Los Angeles Times reports: The FBI obtained a sealed search warrant to read a Fox News reporter’s personal emails from two days in 2010 after arguing there was probable cause he had violated espionage laws by soliciting classified information from a government official, court papers show.

In an affidavit, an FBI agent told a federal magistrate that the reporter had committed a crime when he asked a State Department security contractor, Stephen Jin-Woo Kim, to share secret material about North Korea in June 2009.

The affidavit did not name the reporter, but Fox News identified him as its chief Washington correspondent, James Rosen. He was not charged, but Kim was indicted on espionage charges in August 2010 and is awaiting trial. He has denied leaking classified information.

The case marks the first time the government has gone to court to portray news gathering as espionage, and Fox News officials and 1st Amendment advocates reacted angrily Monday after the secret warrant was reported by the Washington Post.

“We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter,” said Michael Clemente, Fox News executive vice president of news. “In fact, it is downright chilling. We will unequivocally defend his right to operate as a member of what up until now has always been a free press.” [Continue reading…]

Eugene Robinson writes: In both instances [with the AP and Fox News], prosecutors were trying to build criminal cases under the 1917 Espionage Act against federal employees suspected of leaking classified information. Before President Obama took office, the Espionage Act had been used to prosecute leakers a grand total of three times, including the 1971 case of Daniel Ellsberg and the Pentagon Papers. Obama’s Justice Department has used the act six times. And counting.

Obviously, the government has a duty to protect genuine secrets. But the problem is that every administration, without exception, tends to misuse the “top secret” stamp — sometimes from an overabundance of caution, sometimes to keep inconvenient or embarrassing information from coming to light.

That’s where journalists come in. Our job, simply, is to find out what the government doesn’t want you to know. [Continue reading…]

Glenn Greenwald writes: Under US law, it is not illegal to publish classified information. That fact, along with the First Amendment’s guarantee of press freedoms, is what has prevented the US government from ever prosecuting journalists for reporting on what the US government does in secret. This newfound theory of the Obama DOJ — that a journalist can be guilty of crimes for “soliciting” the disclosure of classified information — is a means for circumventing those safeguards and criminalizing the act of investigative journalism itself. These latest revelations show that this is not just a theory but one put into practice, as the Obama DOJ submitted court documents accusing a journalist of committing crimes by doing this.

That same “solicitation” theory, as the New York Times reported back in 2011, is the one the Obama DOJ has been using to justify its ongoing criminal investigation of WikiLeaks and Julian Assange: that because Assange solicited or encouraged Manning to leak classified information, the US government can “charge [Assange] as a conspirator in the leak, not just as a passive recipient of the documents who then published them.” When that theory was first disclosed, I wrote that it would enable the criminalization of investigative journalism generally:

“Very rarely do investigative journalists merely act as passive recipients of classified information; secret government programs aren’t typically reported because leaks just suddenly show up one day in the email box of a passive reporter. Journalists virtually always take affirmative steps to encourage its dissemination. They try to cajole leakers to turn over documents to verify their claims and consent to their publication. They call other sources to obtain confirmation and elaboration in the form of further leaks and documents. Jim Risen and Eric Lichtblau described how they granted anonymity to ‘nearly a dozen current and former officials’ to induce them to reveal information about Bush’s NSA eavesdropping program. Dana Priest contacted numerous ‘U.S. and foreign officials’ to reveal the details of the CIA’s ‘black site’ program. Both stories won Pulitzer Prizes and entailed numerous, active steps to cajole sources to reveal classified information for publication.

“In sum, investigative journalists routinely — really, by definition — do exactly that which the DOJ’s new theory would seek to prove WikiLeaks did. To indict someone as a criminal ‘conspirator’ in a leak on the ground that they took steps to encourage the disclosures would be to criminalize investigative journalism every bit as much as charging Assange with ‘espionage’ for publishing classified information.”

That’s what always made the establishment media’s silence (or even support) in the face of the criminal investigation of WikiLeaks so remarkable: it was so obvious from the start that the theories used there could easily be exploited to criminalize the acts of mainstream journalists. [Continue reading…]

Whether or not this has been formulated in written policy, it seems clear that the way the Obama administration attempts to control the release of classified information is by trying to exert as much control over those who receive such information as those who disseminate it. The leaker and the recipient are treated as sharing equal responsibility — even though in reality both the power and the responsibility lies in the hands of those government officials who possess security clearances.

The administration draws no distinction between the publication of leaked information and the leak itself — as though classified information is being leaked by the press, when in fact it is being leaked to the press.

The New York Times reports: Attorney General Eric H. Holder Jr. on Tuesday defended the Justice Department’s sweeping seizure of telephone records of Associated Press journalists, describing the article by The A.P. that prompted a criminal investigation as among “the top two or three most serious leaks that I’ve ever seen” in a 35-year career.

“It put the American people at risk, and that is not hyperbole,” he said in an apparent reference to an article on May 7, 2012, that disclosed the foiling of a terrorist plot by Al Qaeda’s branch in Yemen to bomb an airliner. “And trying to determine who was responsible for that, I think, required very aggressive action.”

In a statement in response, The A.P.’s president and chief executive, Gary Pruitt, disputed that the publication of the article endangered security.

“We held that story until the government assured us that the national security concerns had passed,” he said. “Indeed, the White House was preparing to publicly announce that the bomb plot had been foiled.” Mr. Pruitt said the article was important in part because it refuted White House claims that there had been no Qaeda plots around the first anniversary of the killing of Osama bin Laden. [Continue reading…]

Lynn Oberlander writes: The cowardly move by the Justice Department to subpoena two months of the A.P.’s phone records, both of its office lines and of the home phones of individual reporters, is potentially a breach of the Justice Department’s own guidelines. Even more important, it prevented the A.P. from seeking a judicial review of the action. Some months ago, apparently, the government sent a subpoena (or subpoenas) for the records to the phone companies that serve those offices and individuals, and the companies provided the records without any notice to the A.P. If subpoenas had been served directly on the A.P. or its individual reporters, they would have had an opportunity to go to court to file a motion to quash the subpoenas. What would have happened in court is anybody’s guess — there is no federal shield law that would protect reporters from having to testify before a criminal grand jury — but the Justice Department avoided the issue altogether by not notifying the A.P. that it even wanted this information. Even beyond the outrageous and overreaching action against the journalists, this is a blatant attempt to avoid the oversight function of the courts.

It is not, again, as if the government didn’t have options. The D.C. Circuit (in a 2005 opinion upholding a finding of contempt against the Times’s Judith Miller and Time’s Matt Cooper for refusing to testify about who had disclosed Valerie Plame’s identity as a C.I.A. operative) has held that there isn’t a First Amendment privilege for journalists to refuse to testify before a criminal grand jury, as has the Second Circuit (in a 2006 case in which the government was trying to find out who told the Times about a planned raid on two foundations suspected of providing aid to terrorists). In the wake of the decisions, there was a renewed effort to pass a federal shield law—though the proposed law would not have provided absolute protection in cases of national security — but, with the rise of WikiLeaks, that discussion died.

The Times’s case provides the facts most similar to the A.P.’s. The prosecutor had asked the Times to provide phone records; when the Times refused, he threatened to get the records directly from the phone companies. The Times then went to court and sought a declaratory judgment that its records were protected by reporter’s privilege. The Second Circuit ruled that phone records — even those held by a third party, such as a phone company—were subject to the same common-law privilege that would apply to the journalists’ own records. However, the court noted that there wasn’t a constitutional privilege to refuse to disclose such records to a criminal grand jury, and that any common-law privilege would be not absolute but “qualified” — meaning that it could be overcome by a compelling government interest. The Circuit, however, declined to define the privilege, other than to say that it wouldn’t stand up in the case before it.

Crucially, though the Times lost that case, 2–1, all of the judges agreed that government could not act unilaterally, without judicial review. [Continue reading…]

Timothy Lee writes: On Monday the Associated Press reported that the Justice Department “secretly obtained two months of telephone records of reporters and editors for The Associated Press.” But here’s what’s really scary: The Justice Department’s actions are likely perfectly legal.

U.S. law allows the government to engage in this type of surveillance—on media organizations or anyone else — without meaningful judicial oversight.

The key here is a legal principle known as the “third party doctrine,” which says that users don’t have Fourth Amendment rights protecting information they voluntarily turn over to someone else. Courts have said that when you dial a phone number, you are voluntarily providing information to your phone company, which is then free to share it with the government.

This all dates back to a 1979 Supreme Court decision. Police had asked the phone company for information about the numbers dialed from a robbery suspect’s phone. The suspect objected, pointing to a famous 1967 ruling holding that the Fourth Amendment requires a warrant to record the audio of a phone call. He argued that the same principle ought to apply when the government records information about the numbers a suspect dials.

The Supreme Court rejected this argument. “We doubt that people in general entertain any actual expectation of privacy in the numbers they dial,” Justice Harry Blackmun wrote for the court. He pointed out that telephone customers are used to seeing numbers they’ve dialed on their monthly telephone bill.

Blackmun’s reasoning may have turned on the fact that automatic dialing was a relatively new development in 1979. Previously, telephone users had to tell a human operator which number they wished to reach, making it plausible to regard the phone company as an active participant in the phone-dialing process, but a mere passive conduit in transmitting the phone call itself.

Technological progress has rendered this distinction increasingly dubious. For example, cell phone companies now keep records about the locations of their customers’ phones. The government has argued that this “non-content” information should be available without a warrant. Yet such records amount to a detailed record of everywhere the phone’s owner has been in the past month; a much more intrusive form of surveillance than a list of the phone numbers a customer has dialed. [Continue reading…]

New York Observer: James C. Goodale, the so-called “father of reporters’ privilege” and the author of a new book called Fighting for the Press (CUNY Journalism Press, 255 pp., $20), was in his office at the Debevoise & Plimpton law firm, where he’s a partner, comparing Barack Obama to Richard M. Nixon.

“Nixon and Agnew were like listening to a Fox News program all day long, every day,” he said. “In their eyes, the Eastern establishment press were against them and they were against it and they were going to destroy it as best they can.” But, he said, “Obama has all these things that he’s done to the press on national security matters that Nixon never did.”

Mr. Goodale, 79, was the general counsel of The New York Times during the 1971 Pentagon Papers case, when President Nixon ordered the old grey lady to cease publication of excerpts from a 7,000-page document, which detailed America’s involvement in Vietnam over the course of three decades. The Times published the first excerpt on June 13, 1971. By June 26, the case had reached the Supreme Court. Over the course of a few days, the justices ruled in a 6-3 decision that the U.S. government could not censor the Times. Nixon then convened a grand jury to indict the Times for conspiracy to violate the Espionage Act – “which really doesn’t mean anything,” Mr. Goodale said, rubbing his forehead in distress — but the case quickly fell apart. Fighting for the Press reads like a political thriller, with Nixon providing some dark comic relief. The guy was not exactly subtle: “As far as the Times is concerned,” he said to John Mitchell, the U.S. Attorney General, “hell they’re our enemies.”

Now, the man who successfully fought Nixon says President Obama has an even more troubling record. [Continue reading…]