2021-06-16 09:40
Before Trump, Obama’s justice department did more to hurt press freedom than any administration since Nixon. Here’s how we stop history repeating.
The US Department of Justice is under increasing fire for the still-unfolding scandals involving the secret surveillance of journalists and even members of Congress in the waning days of the Trump presidency. Some of these actions were even initially defended by the Biden administration’s Department of Justice.
In response to the growing scandal – and the scathing condemnations from the surveillance targets at the New York Times, Washington Post and CNN – the US attorney general, Merrick Garland, has vowed the DoJ will no longer use legal process to spy on journalists “doing their jobs”. The Times, the Post and CNN are set to meet with the justice department this week to seek more information on what happened and extract further promises it won’t happen again.
But mark my words: if Congress does not pass tough and binding rules that permanently tie the DoJ’s hands, it will happen again – whether it’s a Democrat or a Republican in the White House.
Promises are no longer enough. In many circles, these scandals are being portrayed as the Trump White House run amok. While some in the Trump justice department may have been motivated by political vengeance, the problem is far bigger than Donald Trump, William Barr or even the party in charge of the White House.
As the reporter Charlie Savage detailed in an excellent piece in the New York Times over the weekend, administrations in both parties have spied on journalists with increasing abandon for almost two decades, in contravention of internal DoJ regulations and against the spirit of the first amendment. Many people already forget that before Trump was known as enemy number one of press freedom, Barack Obama’s justice department did more damage to reporters’ rights than any administration since Nixon.
So yes, Garland needs to immediately put his “no more spying on reporters” vow into the DoJ’s official “media guidelines”, which govern investigations involving journalists. If he doesn’t, he or his successor could change their mind in an instant. But, why should we just “trust” Garland’s pinky promise to not investigate journalists and politicians without an ironclad law?
Leaks of confidential and classified information to journalists are vital to our democratic system, yet the DoJ often diverts huge resources to root out their sources. If you want an example, look no further than ProPublica’s recent investigation into the American tax system and how the wealthiest billionaires in the country pay little to no taxes. The series of stories sparked outrage across the country as soon as it was published. Garland leapt into action, vowing an investigation … only, he promised to investigate the leaker – not the tax dodgers.
The rise of internet communications has opened the floodgates to authorities’ ability to spy on journalists and root out whistleblowers; they can figure out exactly who journalists are talking to, where, when, and how long; and they can silence media lawyers with expansive gag orders that can leave them almost helpless to appeal. And as the pandemic has rendered in-person meetings even harder than before, people everywhere are more reliant on the communications infrastructure that can betray them at any time.
For real safeguards, Congress needs to act. Perhaps the fact that multiple members of Congress itself, including the representatives Adam Schiff and Eric Swalwell, have now been ensnared in the DoJ’s leak dragnet will make them more likely to move than in the past.
The irony is Representative Schiff and Representative Swalwell have of course been some of Congress’s most ardent defenders of surveillance – even during the Trump administration. They fought against surveillance reform that would put in more safeguards at the DoJ on multiple occasions. In Representative Schiff’s case, despite literally being the co-chair of the “press freedom caucus”, he inserted a provision into an intelligence bill that would even make it easier for the government to prosecute reporters who published leaked classified information.
Being the victim of unjust surveillance sometimes tends to make even the most devoted surveillance hawks soften their stance. If Garland is promising to bar the surveillance of journalists for the purpose of finding their sources, Congress can simply pass a law holding them to it. Anything else at this point is just empty rhetoric.
But there is another issue looming large over this debate, one that many seem hesitant to talk about. Garland has said so far that the DoJ won’t spy on journalists unless they are engaged in a crime. Well, the DoJ is currently attempting to make newsgathering a crime, in the form of its case against the WikiLeaks founder, Julian Assange.
Assange is, to say the least, not popular in Washington DC and in mainstream journalism circles. However, the actions described in the indictment against him, most notably the 17 Espionage Act charges, are indistinguishable for what reporters do all the time: talk to sources, cultivate their trust, request more information, receive classified documents, and eventually publish them.
News outlets like the New York Times and Washington Post already know what a threat the case is to their reporters’ rights; they’ve said so in public. However, it’s vital that they say this to the attorney general’s face. Right now, there is little pressure on the DoJ to drop the Assange charges, despite the fact that virtually every civil liberties and human rights group in the US has protested against them.
If Garland bars surveillance of journalists “doing their jobs” but secures a conviction that makes journalists’ jobs a crime, his promises will ultimately be worse than meaningless.
