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Who Guards the Guardians?

By Ben L. Kaufman · July 8th, 2014 · On Second Thought
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Barack Obama’s Justice Department remains at war with reporters, invoking national security so often we should check to see if the sky is falling. 

Bruised in its recent battle with the AP and Fox News over seizures of reporters’ phone and email records, DoJ uttered predictably duplicitous and pious assurances that it only wanted to protect national security from threatening (read “embarrassing”) revelations.

This latest brawl began when DoJ belatedly admitted that it failed to follow its procedures and warn journalists before telephone and Internet providers would be ordered to give up journalists’ records. 

Had DoJ done that, AP, Fox and others could have asked a judge to block efforts to compel telephone and Internet companies to release the information. Something about “unreasonable searches” maybe…

Now, DoJ says news organizations are to be informed of an impending document demand unless the attorney general determines that notice would pose “a clear and substantial threat to the integrity of the investigation, risk grave harm to national security or present an imminent risk of death or serious bodily harm.” 

Oh, great. That’s an ethics button with a light override touch. 

As understood by major the news media, the rule emphasizes that members of the Justice Department may apply for a search warrant to obtain a journalist’s materials only when that person is a focus of a criminal probe for conduct outside the scope of ordinary newsgathering.

Of course, U.S. Attorney General Eric Holder holds out an olive branch: “As long as I’m attorney general, no reporter who is doing his job is going to go to jail.” However, it’s up to him to define that job.

In the Obama/Holder DoJ, anything more than stenographic reporting of official statements might be construed as potentially criminal conduct outside the scope of ordinary news gathering. 

There still is no obvious sanction for DoJ officials who evade or ignore DoJ rules and there is nothing to compel DoJ to follow its rules (read “policies, sort of”). Put another way, why do we let DoJ call these assertions “rules”?

So far, according to The New York Times and others, Obama/Holder have set the historic record for prosecuting more government whistleblowers than all previous administrations. That’s not just because technology has made it easier to grab and share information. It’s a matter of administration intent. 

And, for the moment, it’s not clear what Obama/Holder will do with their most prominent case: the prosecution of Times reporter James Risen.

They want him to identify the source of information in an unpublished Times story and a subsequent book, State of War.

Risen says he’ll go to prison for contempt rather than name his confidential source, whether it’s indicted suspect Jeffrey Sterling, a disgruntled former CIA agent, or someone else. Last month, the U.S. Supreme Court refused to review his case. That confirmed a lower court order to testify or face contempt. 

The Times says the failed C.I.A. action at the heart of Risen’s reporting “was intended to sabotage Iran’s nuclear weapons program. Intelligence officials assigned a former Russian scientist who had defected to the United States to deliver a set of faulty blueprints for a nuclear device to an Iranian scientist. But the Russian scientist became nervous and informed the Iranians that the plans were flawed.” 

The Times spiked Risen’s original 2003 story after President George W. Bush’s national security adviser, Condoleezza Rice, argued it could damage national security.

Risen broke the story in his 2005 book. By then, it was obvious that faulty intelligence about Iraq’s nuclear program led us into war. 

As Risen put it in one court document, “The competence of intelligence operations concerning Iran’s nuclear capabilities was something that the public needed to examine.”

It’s no accident that the most recent reporter imprisoned by the feds for refusing to name a confidential source — Judith Miller — was also a Times reporter. A key player in the Bush and Times’ drumbeat for war against Saddam Hussein, she wouldn’t say who identified a CIA agent whose husband had debunked a Bush argument for war. 

I pulled from Poynter.com for these responses to the new and improved DoJ policy and practice:

“These new regulations should provide significantly greater protection for journalists,” AP President Gary Pruitt said. “We are hopeful that these regulations will be enforced as intended and that Congress will pass a federal shield law to further protect journalists.”

My comment: “Should” means gutless. “Hopeful” means we’re helpless in a world where the attorney general treats the Fourth Amendment and requirement for court-approved search warrants with contempt. 

AP’s Pete Yost wrote that University of Minnesota professor Jane Kirtley “was troubled that there remain instances under the new rules in which the government might not notify news organizations of plans to obtain records, such as when the government believes notice would threaten national security.” 

My comment: “Rules” are to be obeyed. Quis custodiet ipsos custodies. Who guards the guardians? Obama? Holder? 

Or, as in this so many other lawless or embarrassing situations, whistleblowers and the news media? 

Think how long it took to reveal NSA spying on all Americans or the latest abuse of veterans by the VA?

Kirtley said, “It seems that in times of crisis, there’s a tendency to see everything as a major national security breach. Obviously the intelligence community is always going to represent security breaches as a big deal. My question is, ‘Are they all created equal? Do they all rise to the level of severity to justify what I see as an intrusion into press independence?’ ”

Now that’s lawyerly understatement, which suggests its own answer. 


Curmudgeon Notes:

• A further example of how Enquirer content suffers from continuing staff reductions: the July 4 story about today’s problems that fireworks vendors have in Ohio. The cutline under the accompanying photo says it’s a 2009 image . . . in 2014.  

• If Sunday’s special Enquirer section on all-star local athletes was sponsored by UC Health, it’s what we used to call an ad designed to look like news. That’s deliberately deceptive. If it’s not sponsored by UC health, editors should have designed it to avoid the appearance of an ethical breakdown.

• I’m calling ESPN coverage of World Cup soccer “news.” The ability of announcers to know who’s doing what and to pronounce their names correctly was impressive. However, it would be a mercy to stopping showing mute or mumbling players when national anthems are played. 


CONTACT BEN L. KAUFMAN: letters@citybeat.com


 
 
 
 

 

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