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:
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.
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:
Risen can call this sequence of tweets a "twitter fact-check," not a rant. But it is amazing to me---especially coming from a reporter at the world's leading newspaper---how devoid it is of any pretense of objectivity. It is also remarkably unfactual and ad hominem.
Risen in these tweets sounds like nothing so much as a representative of an interest group aggrieved by presidential policy. All of which leads me to wonder: Is this appropriate behavior for a New York Times reporter? Or do the normal standards of journalistic behavior simply not apply when journalists are engaging in the public sphere on matters related to their own self-interest?
Let's consider some of these tweet in turn:
"Given Holder's speech today, I repeat: The Obama Administration is the greatest enemy of press freedom in a generation." At one level this is simple name-calling. At another level, it's really quite an extraordinary statement. When I think of the generation's great enemies of press freedom, I might think of Vladimir Putin, in whose country journalists have a way of turning up dead. I might think of Kim Jong Un. I might think of ISIS, which beheads journalists, or the Kingdom of Saudi Arabia, which flogs bloggers. Risen, apparently, thinks of Holder and Obama---who have prosecuted a small number of people who leaked highly-classified materials, and have the temerity not to regard the press as immune from the normal testimonial obligations of citizens, a point on which they happen to be correct under Supreme Court precedent.
"Eric Holder has been the nation's top censorship officer, not the top law enforcement officer." This is a grossly unfair statement. There has not been a single episode to my knowledge of censorship by the Justice Department or the Obama administration (or the Bush administration, for that matter). The dictionary defines a censor as "a person who examines books, movies, letters, etc., and removes things that are considered to be offensive, immoral, harmful to society." I challenge Risen to name a single instance of censorship of the press conducted by Eric Holder or the Justice Department.
"Eric Holder has done the bidding of the intelligence community and the White House to damage press freedom in the United States." If by this comment Risen means that press freedom includes immunity against legal process, then yes, Holder is guilty as charged. But hang on a second: That is not now, nor has it ever been, a premise the law has accepted. The Supreme Court in Branzburg v. Hayes, remember, rejected the idea of a reporter's privilege rooted in the First Amendment. Since that time, reporters have continued to assert the privilege, and some courts for a while recognized it despite Branzburg---for a variety of reasons. But a privilege based on press freedom has simply never been the law of the land. And Congress has passed up many opportunities to create a statutory privilege, particularly in the national security space in which Risen operates.
"Eric Holder has sent a message to dictators around the world that it is okay to crack down on the press and jail journalists." Which journalists did Holder jail exactly? And which dictators in the world were staying their hands pending his permission anyway?
"Eric Holder leaves behind a wrecked First Amendment." Puhlease. The continued freedom of one James Risen, after all of the things he has published, is all the testimony the world needs that the First Amendment is alive and well.
"Eric Holder managed to destroy any semblance of a reporters privilege in the United States." Risen here is being silly. While some lower courts honored the privilege despite Branzburg, the edifice was crumbling long before Holder ever took office. Back in 2003, Judge Richard Posner of the 7th Circuit wrote an emperor has no clothes opinion about the privilege, basically arguing that Branzburg meant what it said and that the privilege was a myth.
"This is Eric Holder's true legacy on press freedom: 'There is no First Amendment 'reporter's privilege.' ' From DOJ brief in my case." If this is really Holder's legacy, his legacy is the rather pedestrian one of stating the law. The very holding of Branzburg way back in 1972, after all, was that:
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.
A lot of people in America believe these things as passionately (and only a little more wrongly) as Risen believes what he's said about the First Amendment. But I suspect that a reporter who tweeted them wouldn't be working for the New York Times the next day.
And for the record, I have always supported the recognition of a qualified reporter's privilege, if not judicially than legislatively. And I still do.