This week Congress held confirmation hearings for William Barr, President Trump’s nominee for Attorney General. When Amy Klobuchar (D-Minn.), whose father is a journalist, asked Barr would “the Justice Department jail journalists for doing their jobs,” he should have answered with a single word- No. Yet, he paused, engaged in some hemming and hawing, than declared there were some instances in which he would see such actions as a plausible last resort.
Specifically, “I can conceive of places where, as a last resort, and a news organization has run through a red flag or something like that…knows that they’re putting out something that could hurt the country- there could be a situation into whether someone could be held in contempt.” Also recall that Barr, while serving as Assistant Attorney General under George H W Bush, advocated for amending the First Amendment in order to ban flag burning after the Supreme Court twice ruled flag desecration laws unconstitutional. Ergo we should believe he will make good on his claim.
This comes on the heels of Trump’s many veiled threats in regards to leaks and reporters. For example, on May 14, 2018 he tweeted, “The so-called leaks coming out of the White House are a massive over-exaggeration put out by the Fake News Media in order to make us look as bad as possible. With that being said, leakers are traitors and cowards, and we will find out who they are!” And on August 5, 2017 he tweeted, “After many years of LEAKS going on in Washington, it is great to see the A.G. taking action! For National Security, the tougher the better!”
This should frighten all of us. For who checks the government when they start placing journalists in jail for contempt? This would have sounded like a hyperbolic question 20 years ago yet here we are today. And we did not get here overnight. We have been slowly inching towards this place for years.
Starting in 1945, the Espionage Act has been used to jail press sources and whistle-blowers for decades, with the most renowned case being Daniel Ellsberg and the Pentagon Papers. And although Obama campaigned on curtailing these actions, he proceeded to up the ante. He jailed more whistle-blowers than any other administration prior. Of the 11 cases historically, seven have taken place under the Obama administration.
The Patriot Act is another brick in the game of Jenga. In 2006 under the Bush administration, Brian Ross of ABC News discovered that the NSA had begun tracking the phone numbers of calls made by journalists at major media outlets. Essentially, the FBI and CIA started using provisions of the Patriot Act to garner this information in an effort to stop reporting on secret prisons and illegal torture.
Both of these acts have been congruent to an increase in power of our FISA court. FISA, the Foreign Intelligence Surveillance Act enacted in 1978, was meant to establish legal parameters for the physical and electronic surveillance and collection of data in regards to agents of foreign powers. Yet, a year ago it was revealed through a Freedom of Information Act (FOIA) filing that the DOJ had established specific rules for targeting media members using FISA’s secret courts in 2015. The Freedom of the Press Foundation and Knight First Amendment Institute at Columbia University, the two entities responsible for the FOIA filing, discovered that FISA subpoenas had been actively used to target “Known Media Entities or Known Members of the Media”. This too is a startling revelation that has received too little attention.
Here are the aforementioned documents:
Now back to Trump’s threat on leaks, as it should be more clear now as to why they are concerning. Under the Trump administration we have seen an even greater increase in leak investigations. Jeff Sessions, the previous attorney general who Barr will replace if his nomination passes muster, opened a review of Justice Department rules overseeing when investigators may issue subpoenas to the news media in 2017. He stated at a press conference announcing these changes, “We respect the important role that the press plays, and we’ll give them respect, but it is not unlimited. They cannot place lives at risk with impunity. We must balance the press’ role with protecting our national security and the lives of those who serve in the intelligence community, the armed forces and all law-abiding Americans.” He went on to further emphasize the United States had a problematic “culture of leaks”.
Rod Rosenstein has pushed on with these revisions in Sessions absence. At this point I think it is fair to deduce that the Department of Justice’s clear intention is to lower the bar that prosecutors must meet before requesting subpoenas for members of the press.
Which leaves us to ponder: is criticizing Trump for his hamberder buffet a threat to national security or is it just fake news?