Saturday, June 1, 2013

Obama administration tries to criminalize reporting

Attorney Theodore Boutrous, Jr. blasted the Obama administration on the pages of the Wall Street Journal for "running roughshod" over the press as it attempts to criminalize basic reporting. Mr. Boutrous has represented Dow Jones, the Associated Press, and other news organizations.  The esquire wrote:

The Justice Department has completely lost sight of the First Amendment. The situation looked grim when the public found out that the department had subpoenaed two months of the Associated Press's phone records for one leak investigation. The latest revelations—the secret tracking and search warrant for the personal email ofFox NewsWashington correspondent James Rosen—show a shocking insensitivity to freedom of the press that is premised on the radical theory that traditional news gathering violates federal criminal laws. On Thursday, NBC News reported that Attorney General Eric Holder had signed off on the warrant.

In June 2009, based on unnamed sources, Mr. Rosen reported that the CIA had learned from someone inside North Korea that Pyongyang planned to conduct nuclear tests in response to United Nations sanctions. In August 2010, the Justice Department indicted State Department security adviser Stephen Jin-Woo Kim for violating the Espionage Act of 1917 by leaking the information. (Mr. Kim pleaded not guilty.)

As the Washington Post first reported on Sunday, the prosecutors—unknown to Mr. Rosen or Fox News—built their case against Mr. Kim by using electronic security badge data to track Mr. Rosen's and Mr. Kim's movements in and out of the State Department and by scouring phone records showing communications between them. The prosecutors also persuaded a federal judge to issue a search warrant for Mr. Rosen's private Gmail account. Fox News is now reporting that they also appear to have tracked Mr. Rosen's parents' phone records, though the Justice Department denies this.

The FBI affidavit, submitted in May 2010 asking the court to issue a search warrant for Mr. Rosen's emails, emphasizes that Mr. Rosen cajoled Mr. Kim to disclose the classified information. He did this by "employing flattery and playing to Mr. Kim's vanity and ego," and by using signals and code names to ensure confidentiality. Remember Deep Throat and the red flag in the flowerpot? Flattering sources and using code are basic techniques reporters use to gather information that the government wants to keep secret. In the words of the Supreme Court in Times-Picayune Publishing Co. v. United States (1953), the press is tasked with "vigilantly scrutinizing" the government "as a potent check on arbitrary action or abuse."

Apparently none of this matters to the prosecutors. Instead, they tracked Mr. Rosen's movements like he was a terrorist and labeled his garden-variety, constitutionally protected reporting techniques a crime. The affidavit declares that there is "probable cause" that Mr. Rosen violated the Espionage Act "at the very least, either as an aider, abettor and/or co-conspirator." This stunning assertion was reiterated to Politico by an unnamed Justice Department spokesperson on Monday.

Search warrants involving journalists are exceedingly rare—and rightfully so. Such warrants, which allow immediate physical or electronic seizure of journalistic materials, pose a clear threat to the First Amendment.
(Warrants are worse than subpoenas, since journalists can ordinarily object to and fight subpoenas in court before producing any materials or testifying.)

Congress was so concerned about the potential for abuse of search warrants that in 1980 it enacted the Privacy Protection Act "to limit searches for materials held by persons involved in First Amendment activities." The law provides strong protections for journalists against search warrants. In the case of Mr. Rosen, the government invoked one of the law's few exceptions by accusing him of "committing a crime." The "crime" was asking a government official questions about national security and then publishing the answers.

The Supreme Court, however, has repeatedly made clear that the First Amendment forbids the government from making it a crime for a reporter who lawfully obtains information of public concern to publish it—even if he knows his source may have committed a crime by leaking the information. As the court explained in Bartnicki v. Vopper (2001)—a case in which a radio station broadcast the tape of a cellphone conversation it knew had been illegally recorded and disclosed in violation of federal wiretapping laws—"a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." To conclude otherwise, the court added, would encourage "timidity and self-censorship."

In Bartnicki, the justices rejected arguments for deeming journalistic activities "unlawful" and thus outside First Amendment protection. The federal appeals court in Washington, which will preside over any appeals in Mr. Kim's case, did the same in another wiretapping case, Boehner v. McDermott, in 2007. And the Supreme Court ruled in Smith v. Daily Mail Publishing Co. (1979) that the First Amendment prohibits punishing reporters who use "routine newsgathering techniques"—asking questions— aimed at causing law-enforcement officials to divulge information that criminal law purports to bar them from publishing.

No U.S. court has ever enforced the Espionage Act against a journalist. As its title makes clear, the statute targets officials who engage in espionage by disclosing government secrets to foreign governments or enemies. To stretch its amorphous language to apply to journalists would violate both the First Amendment and due process.

In short, the Justice Department knows better than to suggest that Mr. Rosen committed a crime. This claim was a pretext to get a search warrant and rummage through Mr. Rosen's emails without regard to constitutional and statutory restrictions and the department's own policy guidelines that govern the less invasive subpoena process.

This episode is part of a pattern. The Obama administration is prosecuting a record number of Espionage Act cases against alleged leakers, and along the way it is running roughshod over long-standing precedent and policies regarding journalists.

In the AP matter, the department took the subpoena route but ignored its own guidelines, which require compelling need and surgical precision in seeking information from journalists. It also ignored the requirement to give journalists advance notice to challenge subpoenas in court before records are turned over to prosecutors.

In another pending case, a federal district court in Virginia quashed a subpoena to New York Times reporter James Risen, but a Justice Department lawyer has argued on appeal that the First Amendment provided no protection because Mr. Risen was an "eyewitness to a crime," i.e., the leak of classified information. The lawyer analogized the situation to that of someone who receives illegal drugs from a drug dealer and refuses to testify about it.

This analogy is ludicrous, and the appeals court should reject it. It is disturbing that the government is even making such an argument.


Early Thursday, President Obama said that he is "troubled" about intrusions on press freedom, and that Attorney General Holder will review his department's policies. But given that later in the day Mr. Holder's involvement in the Rosen matter was revealed, a review is not likely to clear the air. Only an immediate repudiation of the misguided policy that has been fueling these leak prosecutions will suffice.

Mr. Boutrous is a partner at Gibson, Dunn & Crutcher LLP. He has represented Dow Jones, the AP and other media organizations in the past. 


Another good reason for the Second Amendment.

7 comments:

Donna Ladd is a Cyberstalker said...

There is no freedom of the press in Kenya nor in Islamic countries. So why in the world would anyone expect Barry to do any differently than he already is doing?

Anonymous said...

Whom are you recommending be shot?

Anonymous said...

It doesn't matter one whit. I am convinced that Obama could put a Fox News reporter in jail, then stand on stage and declare he is an avowed Communist born in Kenya and the press would carry his water and defend him. Not one spineless Democrat would oppose him, and 95% of blacks would still kiss his feet.

Obama has been a joke as a president. His history is a secret, the press gives him full cover, and the people in power lick his boots. Does anyone really believe that disregard for citizens rights will change anything?

Anonymous said...

The analogy to Watergate is not applicable.
Deep Throat was revealing information about a criminal act and cover up of that act committed by the Nixon administration.
Mr. Kim, who revealed classified information, violating the law in doing so was the target, not Mr. Rosen.
I realize the readers of this site hate Obama, but when it comes to this sort of thing, one must look at it as if there was a President and administration one did like.
Frankly, I think the press has become so politicized and so driven by sensationalism as to be unprofessional.
The press should report " who, what, when, and where" not speculation and finding two conflicting opinions for the sake of creating conflict.

Anonymous said...

7:24,

Nice try. Read this part again. It's pretty explicit in debunking your assertion that they were only going after the government employee. And if you have a hard time swallowing anything the WSJ says, I suggest you google Rosen and pick your source.


"Apparently none of this matters to the prosecutors. Instead, they tracked Mr. Rosen's movements like he was a terrorist and labeled his garden-variety, constitutionally protected reporting techniques a crime. The affidavit declares that there is "probable cause" that Mr. Rosen violated the Espionage Act "at the very least, either as an aider, abettor and/or co-conspirator." This stunning assertion was reiterated to Politico by an unnamed Justice Department spokesperson on Monday."

Anonymous said...

And what is the evidence there was NOT probable cause?

You bubble boys best stay in your protective ideological enclosure, lest any facts or sense infect you.

Kingfish said...

Doesn't matter. The law and the constitution protect that reporter. You didn't bother to read the column word for word.


Recent Comments

Search Jackson Jambalaya

Subscribe to JJ's Youtube channel

Archives

Trollfest '09

Trollfest '07 was such a success that Jackson Jambalaya will once again host Trollfest '09. Catch this great event which will leave NE Jackson & Fondren in flames. Othor Cain and his band, The Black Power Structure headline the night while Sonjay Poontang returns for an encore performance. Former Frank Melton bodyguard Marcus Wright makes his premier appearance at Trollfest singing "I'm a Sweet Transvestite" from "The Rocky Horror Picture Show." Kamikaze will sing his new hit, “How I sold out to da Man.” Robbie Bell again performs: “Mamas, don't let your babies grow up to be Bells” and “Any friend of Ed Peters is a friend of mine”. After the show, Ms. Bell will autograph copies of her mug shot photos. In a salute to “Dancing with the Stars”, Ms. Bell and Hinds County District Attorney Robert Smith will dance the Wango Tango.

Wrestling returns, except this time it will be a Battle Royal with Othor Cain, Ben Allen, Kim Wade, Haley Fisackerly, Alan Lange, and “Big Cat” Donna Ladd all in the ring at the same time. The Battle Royal will be in a steel cage, no time limit, no referee, and the losers must leave town. Marshand Crisler will be the honorary referee (as it gives him a title without actually having to do anything).


Meet KIM Waaaaaade at the Entergy Tent. For five pesos, Kim will sell you a chance to win a deed to a crack house on Ridgeway Street stuffed in the Howard Industries pinata. Don't worry if the pinata is beaten to shreds, as Mr. Wade has Jose, Emmanuel, and Carlos, all illegal immigrants, available as replacements for the it. Upon leaving the Entergy tent, fig leaves will be available in case Entergy literally takes everything you have as part of its Trollfest ticket price adjustment charge.

Donna Ladd of The Jackson Free Press will give several classes on learning how to write. Smearing, writing without factchecking, and reporting only one side of a story will be covered. A donation to pay their taxes will be accepted and she will be signing copies of their former federal tax liens. Ms. Ladd will give a dramatic reading of her two award-winning essays (They received The Jackson Free Press "Best Of" awards.) "Why everything is always about me" and "Why I cover murders better than anyone else in Jackson".

In the spirit of helping those who are less fortunate, Trollfest '09 adopts a cause for which a portion of the proceeds and donations will be donated: Keeping Frank Melton in his home. The “Keep Frank Melton From Being Homeless” booth will sell chances for five dollars to pin the tail on the jackass. John Reeves has graciously volunteered to be the jackass for this honorable excursion into saving Frank's ass. What's an ass between two friends after all? If Mr. Reeves is unable to um, perform, Speaker Billy McCoy has also volunteered as when the word “jackass” was mentioned he immediately ran as fast as he could to sign up.


In order to help clean up the legal profession, Adam Kilgore of the Mississippi Bar will be giving away free, round-trip plane tickets to the North Pole where they keep their bar complaint forms (which are NOT available online). If you don't want to go to the North Pole, you can enjoy Brant Brantley's (of the Mississippi Commission on Judicial Performance) free guided tours of the quicksand field over by High Street where all complaints against judges disappear. If for some reason you are unable to control yourself, never fear; Judge Houston Patton will operate his jail where no lawyers are needed or allowed as you just sit there for minutes... hours.... months...years until he decides he is tired of you sitting in his jail. Do not think Judge Patton is a bad judge however as he plans to serve free Mad Dog 20/20 to all inmates.

Trollfest '09 is a pet-friendly event as well. Feel free to bring your dog with you and do not worry if your pet gets hungry, as employees of the Jackson Zoo will be on hand to provide some of their animals as food when it gets to be feeding time for your little loved one.

Relax at the Fox News Tent. Since there are only three blonde reporters in Jackson (being blonde is a requirement for working at Fox News), Megan and Kathryn from WAPT and Wendy from WLBT will be on loan to Fox. To gain admittance to the VIP section, bring either your Republican Party ID card or a Rebel Flag. Bringing both and a torn-up Obama yard sign will entitle you to free drinks served by Megan, Wendy, and Kathryn. Get your tickets now. Since this is an event for trolls, no ID is required. Just bring the hate. Bring the family, Trollfest '09 is for EVERYONE!!!

This is definitely a Beaver production.


Note: Security provided by INS.

Trollfest '07

Jackson Jambalaya is the home of Trollfest '07. Catch this great event which promises to leave NE Jackson & Fondren in flames. Sonjay Poontang and his band headline the night with a special steel cage, no time limit "loser must leave town" bout between Alan Lange and "Big Cat"Donna Ladd following afterwards. Kamikaze will perform his new song F*** Bush, he's still a _____. Did I mention there was no referee? Dr. Heddy Matthias and Lori Gregory will face off in the undercard dueling with dangling participles and other um, devices. Robbie Bell will perform Her two latest songs: My Best Friends are in the Media and Mama's, Don't Let Your Babies Grow up to be George Bell. Sid Salter of The Clarion-Ledger will host "Pin the Tail on the Trial Lawyer", sponsored by State Farm.

There will be a hugging booth where in exchange for your young son, Frank Melton will give you a loooong hug. Trollfest will have a dunking booth where Muhammed the terrorist will curse you to Allah as you try to hit a target that will drop him into a vat of pig grease. However, in the true spirit of Separate But Equal, Don Imus and someone from NE Jackson will also sit in the dunking booth for an equal amount of time. Tom Head will give a reading for two hours on why he can't figure out who the hell he is. Cliff Cargill will give lessons with his .80 caliber desert eagle, using Frank Melton photos as targets. Tackleberry will be on hand for an autograph session. KIM Waaaaaade will be passing out free titles and deeds to crackhouses formerly owned by The Wood Street Players.

If you get tired come relax at the Fox News Tent. To gain admittance to the VIP section, bring either your Republican Party ID card or a Rebel Flag. Bringing both will entitle you to free drinks.Get your tickets now. Since this is an event for trolls, no ID is required, just bring the hate. Bring the family, Trollfest '07 is for EVERYONE!!!

This is definitely a Beaver production.

Note: Security provided by INS
.