Press Freedom: It Depends on What the Meaning of the Word “Is” Is

As we get further away from last week’s what’s-new-is-old counterterrorism speech, I’m increasingly convinced all that happened was the Administration yoked the word “continuing” onto the word “imminent” and declared an entirely new standard that just happens to replicate the existing one.

Which is why I think this detail, from Politico’s leaks-about-a-meeting-about-leaks story, is the most telling I’ve seen on the Holder meeting.

“The guidelines require a balance between law enforcement and freedom of the press, and we all argued that the balance was out of kilter, with the national security and law enforcement interests basically overwhelming the public’s right to get information,” one journalist at the meeting said. “The language concerning ‘aiding and abetting’ comes out of the Privacy [Protection] Act, and they discussed trying to revise that language so that reporters don’t need to be defined as co-conspirators in order to execute search warrants.”

This is a reference to part of the Privacy Act that prohibits the government from seizing media work product unless it is connected to a crime (see pages 5 ff for how it affected the James Rosen warrant application). After claiming Rosen was aiding and abetting a violation of the Espionage Act and therefore his emails could be seized, the FBI then said that since he was potentially criminally liable, he should not get notice. In other words, the aiding abetting was an investigative tactic DOJ used to get around protections put into place just for someone like Rosen.

And DOJ’s solution for abusing a protection meant to protect someone like Rosen is apparently to simply redefine the law, so it can overcome those protections without having to accuse Rosen of being a criminal.

The outcome would remain the same; DOJ would just avoid saying mean things about people associated with powerful media outlets.

And note, from the reports I’ve seen thus far, none of these crack journalists seem to have suggested to DOJ that even the way it was using the Espionage Act to go after sources (many of whom are whistleblowers) is a dangerous misapplication of statute, just like calling James Rosen a co-conspirator is. That is, DOJ’s use of the Espionage Act to give the clearance system more teeth than it was meant to have seems to have escaped these media representatives’ notice.

Ah well. If they had raised DOJ’s abuse of the Espionage Act, DOJ would just do what they appear to intend to do with its abuse of Privacy Act restrictions: redefine the terms and proceed as they had been.

Tweet about this on Twitter8Share on Reddit0Share on Facebook5Google+1Email to someone

7 Responses to Press Freedom: It Depends on What the Meaning of the Word “Is” Is

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7

Emptywheel Twitterverse
bmaz @astepanovich Access journalism at its finest.
2mreplyretweetfavorite
bmaz RT @lawfareblog: Jack Goldsmith: "A New Tactic to Avoid War Powers Resolution Time Limits?" http://t.co/RYz0QWinDt
4mreplyretweetfavorite
bmaz I've been asking the question about 60 timing w/rolling+evolving WPR notifications for weeks. Goldsmith catches on: http://t.co/pAwSXMQtoB
5mreplyretweetfavorite
emptywheel @TheFree_Lance I'd say its problem it in viewing politics as nothing more than a game. But, yeah, doesn't necessarily bode well.
15mreplyretweetfavorite
emptywheel Correction: New WaPo publisher EDITED a book abt St. Ronnie wisdom. Didn't write it. http://t.co/8fs39QtUqH
22mreplyretweetfavorite
emptywheel RT @just_security: .@RParekh88: "UK PM @David_Cameron's new counter-terrorism measures" http://t.co/pS2af3ioyh cc @terrorwatchdog @ukhumanr
24mreplyretweetfavorite
emptywheel @PhilPerspective I guess we can stop holding our breath hoping that Fred Hiatt will ever lose his job.
33mreplyretweetfavorite
bmaz @BradMossEsq @cody_k It contemplates warrants and real probable cause you know Brad!!
36mreplyretweetfavorite
emptywheel Jeff Bezos hires guy who wrote entire book abt Reagan "wisdom" as publisher of WaPo. http://t.co/8fs39QtUqH
38mreplyretweetfavorite
JimWhiteGNV With all the new wars DC tried to roll out in August, I shudder to think what September has in store for us.
1hreplyretweetfavorite
emptywheel @nickmanes1 Rode down that stretch yesterday & back is still screaming in pain. Then realized the real cyclist I was following takes Cherry
2hreplyretweetfavorite
emptywheel @nickmanes1 Jeebus! Don't you fix potholes in that state?
2hreplyretweetfavorite