Yesterday, speaking at the National Press Club, Attorney General Eric Holder was asked a question about the Obama administration's prosecution of leakers, and he offered the following thoughts:
There's a lot in Holder's remarks with which a reasonable person might disagree. And many reasonable reporters will bristle at his words. New York Times national security reporter James Risen did more than bristle. He took to Twitter with a remarkable tirade:
Question: The Obama administration has prosecuted eight alleged whistleblowers under the Espionage Act, more than all previous presidential administrations combined. What justifies this more aggressive posture towards leakers?
Holder: For the record here, the Justice Department prosecuted seven, okay? Eight is right, but seven by the Justice Department, and we inherited I think two of those.
What I would say is that there has been great concern by the members of the press about these prosecutions, and I understand that sensitivity. We had a series of meetings at the Justice Department over the course of the summer and we talked about changing the way in which the Justice Department would view these cases, the policies that underline how we would interact with members of the media, and I think we have come up with some new policies, new procedures that I think have been generally well received. What I’ve said is that we have to continue to look at these policies to make sure that they are kept up to date and make sure we are meeting the needs we have in the Justice Department while being sensitive to the real role, the important role that members of the press play.
I think that, yes, I guess that number is correct---more than other administrations---but that leaves us with a total of I guess five or six that this administration has brought over the course of six years. I don’t think, as you look at those cases individually, that there was anything inappropriate about the cases that were brought.
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.
When you have people who are disclosing, for instance, the identities of people who work in our intelligence agencies, that's the kind of case that I think we have to bring.
But I also think there is a question for you all, for members of the press, as we have to asked ourselves when it comes to national surveillance. Simply because we have the ability to do certain things, should we? I think members of the press have to ask that same question. Simply because you have the ability to, because of a leaker or a source of information that you have, you have the ability to expose that to the public, should you? It is for you to decide. It is not for the government to decide. But it is for you to decide.
I'll use an extreme example, perhaps unfair. In World War II, if a reporter had found out about the existence of the Manhattan Project, is that something that should have been disclosed? Now we are not in a time of war, I understand, and as I said, it is an extreme example, but I think there is a question that reporters should ask about whether or not the disclosure of the information has a negative impact on the national security of the nation. We have tried to be appropriately sensitive in bringing those cases that warranted prosecution. We have turned away, I mean turned away a substantially greater numbers of cases that were brought to us and where prosecution was sought.
Until now, the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.
. . .
Nothing before us indicates that a large number or percentage of all confidential news sources . . . would in any way be deterred by our holding that the Constitution does not, as it never has, exempt the newsman from performing the citizen's normal duty of appearing and furnishing information relevant to the grand jury's task.
The Supreme Court has never revisited this conclusion, and there's just nothing shameful about the Justice Department's relying on an on-point Supreme Court precedent.
I'm amazed that the New York Times tolerates its reporters spewing this sort of factually challenged, ad hominem bile about people they notionally cover. Sure, Risen has free speech rights. And sure, he's not just a reporter here. He's also a litigant in a long-term struggle against the government. But still, I have to think the only reason the Times allows this sort of nonsense from him is that the positions he's advocating happen to reflect the institutional positions of the press itself.
As a thought experiment, imagine for a moment that a New York Times reporter issued the following string of tweets:
- Given Holder's speech today, I repeat: The Obama Administration is the greatest enemy of the Second Amendment in a generation.
- Eric Holder has been the nation's top officer for disarming the citizenry, not the top law enforcement officer.
- Eric Holder has done the bidding of the intelligence community and the White House to damage gun freedoms in the United States.
- Eric Holder has sent a message to dictators around the world that it is okay to crack down on the gun owners and eradicate the right to bear arms.
- Eric Holder leaves behind a wrecked Second Amendment.
- I plan to spend the rest of my life fighting to undo damage done to gun rights in the United States by Barack Obama and Eric Holder.