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.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

7 replies
  1. What Constitution? says:

    “It’s not what we’re doing, it’s what we’re calling it.” Oh, and “these aren’t the droids you’re looking for.”

  2. bloodypitchfork says:

    quote:”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.”unquote

    Notice. right. As if they have a clue in the first place. Rolling on the floor in gut splitting laughter notwithstanding, I’d say these so called “journalists” just helped adjust their own noose a little tighter.

  3. bmaz says:

    I have said from the outset that the “aider, abettor and/or co-conspirator” was an investigative warrant artifice and that people claiming it had some relation to actual prosecution were nuts. It is still true, and the failure to understand that is leading to idiocy like this that Marcy has rightfully pointed out.

    For as much as the press reports on criminal law, they never seem to actually know squat about it. The proper objection is to get rules that prohibit 1st amendment members excluded from use under the conspiracy artifice. Instead, they are creating a FAR larger opening for abuse than exists currently if this reporting from Politico is accurate.

  4. Michael Murry says:

    What the hell does Press Freedom have to do with the meaning of the word “is”? You don’t say. I suggest you try this:

    “Press Freedom depends on what the government tells the press that it means.”

    There. Fixed your English — not to mention your semantics — for you.

  5. Michael Murry says:

    And for those who like to give former President Bill Clinton a ration of shit over “the little word” whose meaning “everybody knows,” I suggest you start with the most fundamental philosophical problem of them all and see how well you can make sense of it.

    From Aristotle’s introduction to Metaphysics, Book IV, Part I:

    “THERE is a science which investigates being as being and the attributes which belong to this in virtue of its own nature. Now this is not the same as any of the so-called special sciences; for none of these others treats universally of being as being. They cut off a part of being and investigate the attribute of this part; this is what the mathematical sciences for instance do. Now since we are seeking the first principles and the highest causes, clearly there must be some thing to which these belong in virtue of its own nature. If then those who sought the elements of existing things were seeking these same principles, it is necessary that the elements must be elements of being not by accident but just because it is being. Therefore it is of being as being that we also must grasp the first causes.”

    And from Aristotle’s conclusion to Metaphysics, Book IV, Part I:

    “Evidently, again, those who say all things are at rest are not right, nor are those who say all things are in movement. For if all things are at rest, the same statements will always be true and the same always false, but this obviously changes; for he who makes a statement, himself at one time was not and again will not be. And if all things are in motion, nothing will be true; everything therefore will be false. But it has been shown that this is impossible. Again, it must be that which is that changes; for change is from something to something. But again it is not the case that all things are at rest or in motion sometimes, and nothing for ever; for there is something which always moves the things that are in motion, and the first mover is itself unmoved.”

    And by the way: now you know where the idea of “gawd” comes from. It just “is” because … well … it just has to “be” because … well … it just “is.”

  6. Michael Murry says:

    @bmaz:

    “… if this reporting from Politico is accurate.”

    Since Politico participated in an “off the record” seance with the Attorney General, what they claim to “report” in fact constitutes a “leak” since the public cannot independently corroborate the accuracy of their claim. The Attorney General did not wish me to hear what he had to say to select sycophants and hagiographers like Politico. Therefore, I have no interest in what Politico and the Attorney General want me to think that the Attorney General said.

    Newspapers and journalists, generally, should print whatever the hell they want and let the government read all about it in the papers like everyone else. If the government doesn’t like what it reads in the papers, then the government can offer its own rebuttal in public. Then the citizens can inform themselves and reach their own conclusions about whom to believe.

  7. newz4all says:

    Meet Abdulelah Haider Shaye, The Other Journalist The Obama Administration Has Targeted

    James Rosen got off easy. After searching his email and tracking his whereabouts, the Department of Justice has not jailed or prosecuted the Fox News journalist, which the Obama administration says reflects its deep respect for the role of a free press.

    The Obama administration gave no such leniency to Abdulelah Haider Shaye, a Yemeni journalist who had access to top officials in the militant Islamist group Al Qaeda in the Arabian Peninsula (AQAP) and reported on evidence that the United States had conducted a missile strike in al Majala for which the Yemeni government had claimed credit.

    After Shaye was initially imprisoned for alleged involvement with AQAP in 2010, supporters pressed for his release, and word leaked that the Yemeni president was going to issue a pardon. In early 2011, Obama personally intervened. “President Obama expressed concern over the release of Abd-Ilah al-Shai, who had been sentenced to five years in prison for his association with AQAP,” reads a summary of the call posted on the White House website.

    The reporter was not released. The US administration has still presented no evidence to back up the notion that he is a terrorist or a supporter of terrorism. “We remain concerned about al-Shai’s potential early release due to his association with Al Qaeda in the Arabian Peninsula,” Bernadette Meehan, a White House spokesperson, told HuffPost.

    Shaye’s case is likely to receive new scrutiny in the wake of the Rosen matter, the trial of Army PFC Bradley Manning for passing secret files to WikiLeaks, and the release of the documentary “Dirty Wars,” which highlights Shaye’s ongoing imprisonment. Written by investigative reporter Jeremy Scahill, the film opens Friday, June 7.

    http://www.huffingtonpost.com/2013/05/31/abdulelah-haider-shaye-yemeni-journalist_n_3366843.html

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