Why is Eric Holder In Charge of Oversight on Eric Holder's Surveillance of Journalists Policy?

Why is Eric Holder In Charge of Oversight on Eric Holder's Surveillance of Journalists Policy?
May 24, 2013

President Obama delivered a much-anticipated speech yesterday on national security policy, where he unexpectedly touched on the recent AP and Fox News press freedom scandals. While he condemned leaks, he emphasized that “Journalists should not be at legal risk for doing their jobs,” and that he’s “troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.”

The President's words are long overdue, given, as media lawyer Ted Boutrous writes in today's Wall Street Journal, "The Justice Department has completely lost sight of the First Amendment." But Obama’s supposed remedy is to have Eric Holder review Justice Department policy, the same man who has overseen the Justice Department prosecute leakers to the press at a record rate.

While Holder, like Obama, has been saying all the rights things in the last few days, his actions belie a different view. Just last Friday, Holder told the House Judiciary committee that “the focus should be on those people who break their oath and put the American people at risk, not the reporters who gather the information,” yet we learned yesterday it Holder himself who signed off on the warrant for James Rosen’s email which insisted he was a “co-conspirator” under the Espionage Act.

The President said that the Attorney General would meet with media organizations to review the guidelines for subpoenaing reporters and how to fix them, which is great, but the guidelines were not a problem to begin with—only those supposed to be following them.  It’s clear from the AP case that the guidelines were ignored, even taking the exceptions into account.

And in the Fox News case, as Professor Orin Kerr explains, the DOJ may have named reporter James Rosen a co-conspirator to explicitly get around the Privacy Protection Act, which also constrains how the Justice Department can spy on reporters.

It would seem putting Eric Holder in charge of these investigations is like putting a shoplifter in charge of inventory.

While both Obama and Holder have talked about press freedom, they both have defended the Justice Department’s actions and have not even mildly second-guessed the broad AP subpoenas or the “co-conspirator” label.

The only action they’ve taken so far is to push for a renewed debate on a federal shield bill that would supposedly protect the media’s sources in scandals like these. Of course, the Justice Department already have the power to not subpoena reporters, they apparently just can’t help themselves. As  Ted Boutrous pointed out, their call for a shield bill is akin to saying “stop us before we kill again.”

Still, a robust shield bill would be a welcome change. Unfortunatley, thanks to a White House-added national security exception to the bill, it would’ve done virtually nothing for the AP and Fox News, and worse, it could actually make it easier for the Justice Department to get sources out of reporters in some cases.

Meanwhile, the onslaught of criticism against the Justice Deparment’s behavior has continued. The longtime executive editor of the Washington Post, Leonard Downie Jr. wrote, “the Obama administration’s steadily escalating war on leaks, the most militant I have seen since the Nixon administration, has disregarded the First Amendment and intimidated a growing number of government sources of information — most of which would not be classified — that is vital for journalists to hold leaders accountable.”

Downie would know, given he started at the Washington Post in 1964 and was present when the Paper was temporarily censored by the Nixon administration over the Pentagon Papers, and then as the paper took a leading role in exposing Watergate.

Downie’s comments echo another man at the center of press freedom battles against Nixon, James Goodale, who was the New York Times general counsel in both the Pentagon Papers case and the first cases involving the government subpoenaing reporters. Goodale has said repeatedly over the last few weeks that Obama is as bad as Nixon, and could be worse if he goes ahead with prosecuting WikiLeaks, like has long been rumored.

To be clear, it was unequivocally good to hear President Obama stand up for press freedom yesterday, it’s just those words must be followed by actions. And when President Obama says, “Journalists should not be at legal risk for doing their jobs,” we also hope that does not stop at the US border.

He should be reminded of Abdulelah Haider Shaye, the respected Yemeni reporter who has worked for multiple US publications, yet sits in jail in Yemen for doing his job. After Shaye reported on the US cruise missiles in Yemen that killed dozens of women and children, he was incarcerated. When he was about to be pardoned, Obama personally intervened with the Yemeni president to keep him prison.

These scandals can lead to one of two things: force the administration to course correct and hold those who overreached accountable, or alternatively, permanently ensconce a policy of hostility towards the press inside the Justice Department. To accomplish the former, we need real accountability. With only words from the people in charge, we will be stuck with the latter.