August 31, 2013
BAD REVIEWS: Obama, Holder, Journalists, And Their Sources.
Initially, a federal district judge, Leonie Brinkema, issued an opinion that was favorable to Risen’s position. The Administration appealed. In 2012, despite pleas for restraint from major news organizations—including both the Times and Fox News—Holder approved an appellate brief that marked a low point in recent First Amendment litigation. It rejected any notion of a reporter’s constitutional privilege to protect sources in criminal proceedings. It dismissed the idea that reporting like Risen’s might be justified because it serves the public interest. And it described a working reporter who hears classified information during an interview with a government official as a witness to a crime, under the Espionage Act of 1917—no different under criminal law from a witness to a murder.
The brief was a plank in a wider Administration campaign to deter leakers in national-security cases by punishing them harshly and by acting aggressively to identify journalists’ sources. Holder has approved more media-leak prosecutions than all previous Attorneys General combined. This spring, however, after it was revealed that the Justice Department had secretly seized phone records of Associated Press reporters and editors, as well as those of the Fox reporter James Rosen, the Administration backed down, and, on July 12th, Holder vowed to change how Justice would treat journalists in criminal cases.
The rest of this piece is basically special pleading on the part of journalists — hey, you wouldn’t treat us like Assange or Snowden or Manning, we’re your buddies! — that misses that the campaign to intimidate whistleblowers is all of a piece, by an Administration that has a lot to hide.