You’ve no doubt heard that Jeff Bezos just bought WaPo.
Which means the same guy who owns WaPo also provides the CIA with its new cloud storage (unless IBM succeeds in their bid to challenge it).
I’m sure this will have an utterly salutary effect on the news business.
When I read this passage from DOJ’s new News Media Policy, it caused me as much concern as relief.
The Department’s policies will be revised to provide formal safeguards regarding the proper use and handling of communications records of members of the news media. Among other things, the revisions will provide that with respect to information obtained pursuant to the Department’s news media policy: (i) access to records will be limited to Department personnel who are working on the investigation and have a need to know the information; (ii) the records will be used solely in connection with the investigation and related judicial proceedings; (iii) the records will not be shared with any other organization or individual inside or outside of the government, except as part of the investigation or as required in the course of judicial proceedings; and(iv) at the conclusion of all proceedings related to or arising from the investigation, other than information disclosed in the course of judicial proceedings or as required by law, only one copy of records will be maintained in a secure, segregated repository that is not searchable.
It is nice for the subset of journalists treated as members of news media whose calls get treated under these new policies and not — as still seems possible — under the apparently more permissive guidelines in the FBI’s Domestic Investigations and Operations Guide that when their call and other business records are collected, some of that information will ultimately be segregated in a non-searchable collection. Though why not destroy it entirely, given that the information used for the investigation and court proceedings will not be segregated?
Moreover, this passage represents a revision of previous existing policy.
Which means data from members of the news media may not have been segregated in the past.
When you consider that one of the abuses that led to these new policies included the collection of 20 phone lines worth of data from the AP — far, far more than would be warranted by the investigation at hand — it raises the possibility that DOJ used to do more with the data it had grabbed from journalists than just try to find isolated sources.
Like the two to three hop analysis they conduct on the Section 215 dragnet data.
It’s with that in mind that I’ve been reading the reports that Kiwi troops were wandering around Kabul with records of McClatchy freelancer Jon Stephenson’s phone metadata.
The Sunday Star-Times has learned that New Zealand Defence Force personnel had copies of intercepted phone “metadata” for Stephenson, the type of intelligence publicised by US intelligence whistleblower Edward Snowden. The intelligence reports showed who Stephenson had phoned and then who those people had phoned, creating what the sources called a “tree” of the journalist’s associates.
New Zealand SAS troops in Kabul had access to the reports and were using them in active investigations into Stephenson.
The sources believed the phone monitoring was being done to try to identify Stephenson’s journalistic contacts and sources. They drew a picture of a metadata tree the Defence Force had obtained, which included Stephenson and named contacts in the Afghan government and military.
The sources who described the monitoring of Stephenson’s phone calls in Afghanistan said that the NZSIS has an officer based in Kabul who was known to be involved in the Stephenson investigations.
Last year, when this happened, Stephenson was on the Green-on-Blue beat, He published a story that a massacre in Pashtun lands had been retaliation for the killing of Taliban. He reported on another NATO massacre of civilians. He reported that a minister accused of torture and other abuses would be named Hamid Karzai’s intelligence chief. Earlier last year he had reported on the negotiations over prisoner transfers from the US to Afghan custody.
Now, the original report made a both a credibility and factual error when it said Stephenson’s metadata had been “intercepted.” That has provided the Kiwi military with a talking point on which to hang a non-denial denial — a point Jonathan Landay notes in his coverage of the claims.
Maj. Gen. Tim Keating, the acting chief of New Zealand’s military, said in a statement that no military personnel had undertaken “unlawful interception of private communications.”
“I have asked the officers responsible for our operations in Afghanistan whether they have conducted monitoring of Mr Stephenson . . . and they have assured me that they have not.”
The statement, however, did not address whether metadata, which includes the location from where a call is made, the number and location of the person who is being called and the duration of the call, was collected for Stephenson’s phones. Such data are generally considered business records of a cell phone provider and are obtained without intercepting or real-time monitoring of calls. In the United States, for example, the Foreign Intelligence Surveillance Court has ordered Verizon to deliver such records of all its customers to the National Security Agency on a daily basis.
While under contract to McClatchy, Stephenson used McClatchy cell phones and was in frequent contact with McClatchy editors and other reporters and correspondents. [my emphasis]
Indeed, higher ranking New Zealand politicians are trying to insinuate that Stephenson’s call records would only be collected if he was communicating with terrorists — even while admitting the government did have a document treating investigative journalists like terrorists.
Prime Minister John Key said it’s theoretically possible that reporters could get caught in surveillance nets when the U.S. spies on enemy combatants.
[snip]
Also Monday, New Zealand Defense Minister Jonathan Coleman acknowledged the existence of an embarrassing confidential order that lists investigative journalists alongside spies and terrorists as potential threats to New Zealand’s military. That document was leaked to Hager, who provided a copy to The Associated Press. Coleman said the order will be modified to remove references to journalists.
Finally, New Zealand officials seem to be getting close to blaming this on the US.
“The collection of metadata on behalf of the NZDF by the U.S. would not be a legitimate practice, when practiced on a New Zealand citizen,” Coleman said. “It wouldn’t be something I would support as the minister, and I’d be very concerned if that had actually been the case.”
Thus far, the coverage of the Stephenson tracking has focused on the Kiwi role in all of it. But as Landay notes, Stephenson would have been using McClatchy-provided cell phones at the time, suggesting the US got the records themselves, not by intercepting anything, but simply by asking the carrier, as they did with the AP.
Ultimately, no one is issuing a direct denial that some entity tied to ISAF — whether that be American or New Zealand forces — collected the phone records of a journalist reporting for a US-based outlet to try to identify his non-friendly sources.
So what other journalists have US allies likened to terrorists because they actually reported using both friendly and unfriendly sources?
The Fourth Circuit — which covers CIA, JSOC, and NSA’s territory — just ruled that journalists who are witnesses to alleged crimes (or participants, the opinion ominously notes) must testify in the trial.
There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.
With this language, the Fourth applies the ruling in Branzburg — which, after all, pertained to the observation of a drug-related crime — to a news-gathering activity, the receipt of classified information for all the states in which it most matters.
The opinion goes on to echo DOJ’s claims (which I recalled just yesterday) that Risen’s testimony is specifically necessary.
Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.
[snip]
There is no dispute that the information sought from Risen is relevant. Moreover, it “can[not] be obtained by alternative means.” Id. at 1139. The circumstantial evidence that the government has been able to glean from incomplete and inconclusive documents, and from the hearsay statements of witnesses with no personal or first-hand knowledge of the critical aspects of the charged crimes, does not serve as a fair or reasonable substitute.
[snip]
Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information. And it was through the publication of his book, State of War, that the classified information made its way into the public domain. He is the only witness who can specify the classified information that he received, and the source or sources from whom he received it.
[snip]
Clearly, Risen’s direct, first-hand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony.
This language will enhance the strength of the reservation DOJ made to its News Media Policies, allowing it to require testimony if it is essential to successful prosecution.
The only limit on the government’s authority to compel testimony under this opinion is if the government is harassing the journalist, which (with proof of the way the government collected phone records, which remains secret) might have been proven in this case. There is a strong case to be made that the entire point of this trial is to put James Risen, not Jeffrey Sterling, in jail. But Leonie Brinkema has already ruled against it. I think the subpoena for 20 AP phone lines might rise to that level as well, except that case is being investigated in the DC Circuit, where this ruling doesn’t apply.
This pretty much guts national security journalism in the states in which it matters.
Golly. It was just last week when the press believed DOJ’s News Media Guidelines would protect the press’ work.
Little more than few hours ago, a critical ruling was handed down by Judge Denise Lind in the Bradley Manning UCMJ prosecution ongoing at Fort Meade. The decision was on based on this motion by the defense seeking dismissal of the “Aiding the Enemy” charge, among others in the prosecution.
To make a long, even if sadly predictable, story short, the motion was denied by Judge Lind and the charge will proceed to determination on the merits. This is, to be sure, a nod to the prosecution (which is actually the standard in such motions for directed verdicts during trials; that is the facts are taken in the light most favorable to the non-moving party, the government). It is also, obviously, a blow to the defense, although undoubtedly an expected one for defense attorney David Coombs. There is a very outside chance of a silver lining I will discuss below.
Julie Tate at the Washington Post sets the table:
The motion to dismiss the charge was filed July 4 by Manning’s civilian defense attorney. He argued that the government had failed to show that Manning “had ‘actual knowledge’ that by giving information to WikiLeaks, he was giving information to an enemy of the United States.” He said the government did introduce evidence “which might establish that PFC Manning ‘inadvertently, accidentally, or negligently’ gave intelligence to the enemy,” but that this was not enough to prove the most serious charge against him, known as an Article 104 offense.
On two separate occasions, Lind, an Army colonel, had questioned military prosecutors about whether they would be pursuing the charge if the information had been leaked directly to The Washington Post or the New York Times. Each time, the prosecution said it would. That troubles advocates for whistleblowers, who fear that the leaking of national defense information that appears online, as it inevitably does, can be construed as assisting the enemy.
If convicted of aiding the enemy, Manning, an intelligence analyst who served in Iraq, could face life in prison.
That describes the motion and the stakes as to Manning. Julie’s article also gives more particulars on the denial this morning, and is worth a read. For a tick tock, please see the continuously good coverage by Kevin Gosztola of Firedoglake.
But as enormous as the stakes are for Bradley Manning, the enterprise of investigative journalism is also on trial, even if in an indirect manner.
Yet another journalist who has tirelessly, and superbly, covered the Manning prosecution, Alexis O’Brien, has written at the Daily Beast, the stakes for investigative journalism are also life and/or death in the face of the security/surveillance state. Citing the in court, and on the trial record, compelling testimony of Professor Yochai Benkler of Harvard Law School, Alexis related:
In a historic elocution in court last week, Prof. Yochai Benkler, co-director of the Berkman Center for Internet and Society at Harvard Law School, told Lind that “the cost of finding Pfc. Manning guilty of aiding the enemy would impose” too great a burden on the “willingness of people of good conscience but not infinite courage to come forward,” and “would severely undermine the way in which leak-based investigative journalism has worked in the tradition of [the] free press in the United States.”
“[I]f handing materials over to an organization that can be read by anyone with an internet connection, means that you are handing [it] over to the enemy—that essentially means that any leak to a media organization that can be read by any enemy anywhere in the world, becomes automatically aiding the enemy,” said Benkler. “[T]hat can’t possibly be the claim,” he added.
Benkler testified that WikiLeaks was a new mode of digital journalism that fit into a distributed model of emergent newsgathering and dissemination in the Internet age, what he termed the “networked Fourth Estate.” When asked by the prosecution if “mass document leaking is somewhat inconsistent with journalism,” Benkler responded that analysis of large data sets like the Iraq War Logs provides insight not found in one or two documents containing a “smoking gun.” The Iraq War Logs, he said, provided an alternative, independent count of casualties “based on formal documents that allowed for an analysis that was uncorrelated with the analysis that already came with an understanding of its political consequences.”
Those really are the stakes in the, now, not all that new age of digital journalism. When the prosecutors in the Manning trial, upon direct questioning by Judge Lind as to whether they would still prosecute Manning if his leaks had been delivered straight to the New York Times or Washington Post, it had to be a wake up call for traditional media. Or so you would think. But, really, the outrage has been far greater over the James Rosen/Fox subpoena that could, and arguably should, be considered relative peanuts.
But, Yochai Benkler is right as to the import of the consideration as to Wikileaks in the Manning case.
In closing, the one slim and thin ray of limited hope from today’s ruling by Denise Lind: If I were Lind and cared at all about the ultimate verdict on Pvt. Bradley Manning, I too would have made this ruling. Why, you ask? Well, because a dismissal on the motion would have been the equivalent of a directed verdict on the law and would be far easier to overturn on appeal than a decision on the merits that the government has not met its burden of proof. Is this possible; sure, it certainly is. Is this likely; no, I would not make any substantial bets on it.
Apparently, Walter Katz — who tweets as “lawscribe / Wieland” — believes he succeeded in “calling me out” on “bullshit by omission” with this post on Saturday.
After he pointed me to it in apparent good faith on Saturday, I pointed out his own omissions, as well as two errors.
The errors were two-fold. First, he originally identified me as a lawyer, which I noted here I am not. He just updated his post to correct that and one other error (though seems not to have noted that I corrected him, as bmaz has in the past).
More problematic for his argument, he believes he caught me in an error in this passage:
But with its revised “News Media Policies,” DOJ gets us closer to having just that, an official press.
That’s because all the changes laid out in the new policy (some of which are good, some of which are obviously flawed) apply only to “members of the news media.” They repeat over and over and over and over, “news media.” I’m not sure they once utter the word “journalist” or “reporter.”
The “I’m not sure they once utter” comment clearly referred, in context, to DOJ in the News Media Policies. And, in point of fact, I’ve since done a search of the document, and DOJ does not once use the term “journalist” or “reporter” in it. It was a correct statement.
But Katz cites the FBI’s Domestic Investigations and Operations Guide — not the News Media Policies — and notes that it mentions “journalist.”
A freelance journalist may be considered to work for a news organization if the journalist has a contract with the news entity or has a history of publishing content.
Not only does the DOJ refer to “journalists” as Emptywheel said she was not “sure” if it ever did, it specifically provides for independent journalists who are either under contract with a publication or have published before.
Of course DOJ, in its history, has uttered the word “journalist” before, plenty of times. They have an entire department that deals with journalists! But I made no claim that DOJ, generally, had never used the word “journalist,” which would be an absurd claim. In spite of the fact that I noted this clear error in his piece, Katz did not correct his own piece when he took out his erroneous reference to me as a lawyer.
As to Katz’ omissions, he makes two, one substantive, and one of equal weight to one he complains I’ve made. First, he quotes my entire 2011 discussion on what the DIOG says about news media I included in my post except for this last bit:
The definition does warn that if there is any doubt, the person should be treated as media. Nevertheless, the definition seems to exclude a whole bunch of people (including, probably, me), who are engaged in journalism.
Now, it’s especially odd that he doesn’t quote that passage, because immediately after that blockquote, he paraphrases (arguably mis-paraphrases, since my argument is that I engage in journalism that should clearly be protected) the last part of the passage.
Emptywheel argues that she, as a blogger, is not included in the definition of “news media” even though she may be disseminating information to the public as defined in the Privacy Protection Act of 1980.
Not only would it have been useful for Katz to convey to his readers that I made that assertion in 2011 (when I had no regular affiliation with a news media organization and therefore it was a much clearer case). But by leaving out my note that “The definition does warn that if there is any doubt, the person should be treated as media,” he leaves out a key caveat I made. I noted that omission here.
Then he complains that I didn’t (in 2011, when I had no regular ties to news media) continue my citation from DIOG one sentence further. He introduced the “freelance journalist” passage, above, with this language:
Emptywheel neglected to include what it states in the DIOG definition of “news media” on page 157 directly after it notes that a national reporter with a personal blog is covered by the guidelines:
But curiously, Katz chose to stop his own citation there, leaving out the sentence that immediately followed:
Publishing a newsletter or operating a website does not by itself qualify an individual as a member of the news media.
The passage certainly reinforces my point (as do a few other lines in the definition), and was part of what might have disqualified me — in 2011, when I made the statement about not qualifying — as a member of the news media. I noted that Katz omission here.
Of course, these mutual “gotchas” would be mooted had Katz simply not clipped my own quote and instead (mis)paraphrased my 2011 comment so as to skip my caveat. Nevertheless it is that omission — the sentence that my caveat would have incorporated — that he thinks demonstrates my “bullshit by omission.”
Incidentally, Katz also chose to clip my sentence that said some of these changes were good. I guess that would have harmed his claim that I “do[] not see the new guidelines as much progress.”
Finally, Katz fails, according to his own terms, in one other way. He embraces the term “news media” because it allows DOJ to be consistent across its document.
Emptywheel continutes:
They repeat over and over and over and over, “news media.” I’m not sure they once utter the word “journalist” or “reporter.” And according to DOJ’s Domestic Investigation and Operations Guide, a whole slew of journalists are not included in their definition of “news media.”
Since I consult with law enforcement agencies on writing policy, the fact the DOJ generally uses one term, “news media,” is of no moment and, in fact, is desirable for clarity purposes.
But, of course, a key part of these policies (indeed, the one Katz focuses on in his post) is in addressing the Privacy Protection Act. And as I noted in my post, the PPA uses an entirely different standard than “news media” — it applies to “individuals who have a purpose to disseminate information to the public.”
The Privacy Protection Act of 1980 (PPA), 42 U.S.C. § 2000aa, generally prohibits the search or seizure of work product and documentary materials held by individuals who have a purpose to disseminate information to the public. The PPA, however, contains a number of exceptions to its general prohibition, including the “suspect exception” which applies when there is “probable cause to believe that the person possessing such materials has committed or is committing a criminal offense to which the materials relate,” including the “receipt, possession, or communication of information relating to the national defense, classified information, or restricted data “under enumerated provisions. See 42 U.S.C. §§ 2000aa(a)(1) and (b)(1). Under current Department policy, a Deputy Assistant Attorney General may authorize an application for a search warrant that is covered by the PPA, and no higher level reviews or approvals are required.
First, the Department will modify its policy concerning search warrants covered by the PPA involving members of the news media to provide that work product materials and other documents may be sought under the “suspect exception” of the PPA only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities. Under the reviews policy, the Department would not seek search warrants under the PPA’s suspect exception if the sole purpose is the investigation of a person other than the member of the news media. [my emphasis]
So by using “news media,” DOJ has actually shifted from one definition to another in the course of two paragraphs in discussing the topic that Katz focuses on as the reason for the new guidelines. I noted that here.
Now, to be fair to Katz, when I linked to my 2011 analysis of DIOG, I didn’t obviously identify it (beyond the link) as 18 month old analysis, so he may have been confused about that (though he appears to have clicked through, at least using my link to DIOG). So perhaps when he was bragging about having called out my “bullshit by omission” he may not have understood the errors such claims introduced in his own writing. My apologies if that’s the case.
But none of that explains why Katz went into his post and made corrections, yet didn’t correct the clear error about my reference to “journalist.”
As I noted in this piece, the new policies DOJ rolled out in the wake of the AP and James Rosen revelations applies explicitly to “members of the news media,” not journalists per se. The definition might permit the exclusion of bloggers and book writers, not to mention publishers like WikiLeaks.
I’ve been asked what I think a better solution is. My answer is to define — and then protect — the act of journalism, not the news media per se.
That approach would have several advantages over protecting “the news media.” First, by protecting the act of journalism, you include those independent reporters who are unquestioningly engaging in journalism (overcoming the blogger question I laid out, but also those working independently on book projects, and potentially — though this would be a contentious though much needed debate — publishers like WikiLeaks), but also exclude those news personalities who are engaging in entertainment, corporate propaganda, or government disinformation.
But protecting the act of journalism rather than “news media” would also serve to exclude another group that should have limited protection. Included within DOJ’s definition of those it is protecting here are not just the reporters who work for the news media, but also the managers.
“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.
While I absolutely agree that, say, AP’s editors should have had their phone records protected as they contemplated withholding the UndieBomb 2.0 story after the White House request (those records were included in the subpoena) — that is, as they engaged in a journalistic role. That would protect any discussions they had with sources or other experts to challenge the government’s claim about damage, for example. But the communications of a Tim Russert being pressured after the fact about a critical story by the Vice President’s Chief of Staff should not be protected. Nor should WaPo CEO Katharine Weymouth’s discussions with huge donors like Pete Peterson or potential salon sponsors. While I suspect DOJ sees real benefit in protecting these cocktail weenie means of pressure on news media (as do, undoubtedly, some of the executives involved), I see no journalistic reason to do so.
Moreover, in an era where WaPo is really a testing firm with a journalistic rump and NBC is really the TV content wing of a cable supplier, should we really be protecting the “news media” with no limits? (Bloomberg, I think, presents the most fascinating question here, particularly given their recent spying on users of Bloomberg terminals; where does the journalistic protection for companies that primarily provide privatized information begin and end?)
But even within the scope of Friday’s guidelines, there’s a reason the members of the news media should favor protecting the act of journalism rather than membership in news media.
That’s because two of the most important passages in the new News Media Policies refer to newsgathering activities as a further modification to its otherwise consistent discussion of members of the news media. The phrase appears in what amounts to a mission statement describing why this issue is important.
As an initial matter, it bears emphasis that it has been and remains the Department’s policy that members of the news media will not be subject to prosecution based solely on newsgathering activities. Furthermore, in light of the importance of the constitutionally protected newsgathering process, the Department views the use of tools to seek evidence from or involving the news media as an extraordinary measure. The Department’s policy is to utilize such tools only as a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.
This is a weird passage, in that it both admits the “newsgathering process” is constitutionally protected, presumably for all, but then suggests the protections within this policy will only apply to members of the news media (one limitation) who cannot be prosecuted exclusively for their newsgathering activities (a second limitation).
Note the parallel limitation in a number of DOJ’s surveillance and investigative guidelines — which say people cannot be investigated solely for their First Amendment protected activities — has not provided adequate protection to Muslims engaging in speech and religion.
The policies again invoke “newsgathering activities” in the passage describing the news media protections in DOJ’s treatment of the Privacy Protection Act.
First, the Department will modify its policy concerning search warrants covered by the PPA involving members of the news media to provide that work product materials and other documents may be sought under the “suspect exception” of the PPA only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities. Under the reviews policy, the Department would not seek search warrants under the PPA’s suspect exception if the sole purpose is the investigation of a person other than the member of the news media.
By limiting protections offered to members of the news media to “ordinary newsgathering activities,” DOJ has just punted one of the crucial issues underlying the James Rosen affidavit (and, along with it, DOJ’s efforts to prosecute WikiLeaks). Because it still permits DOJ to decide, potentially in secret (though, as a laudable part of the new policy, with the input of the Public Affairs Director and the Privacy and Civil Liberties Officer), what constitutes “ordinary newsgathering activities.” And some of the things the FBI officer apparently decided in that case did not constitute ordinary newsgathering activities, but instead provided evidence that Rosen was part of a conspiracy to commit espionage, include:
While there are other protections for news media in these new policies (including protections from non-NSL Administrative orders, review before using such investigative methods, reporting on how much investigation of news media occurs, and what amount to increased minimization procedures for news media contact information), this is one of the critical new protections in this policy.
If DOJ decides that protecting sources and methods, soliciting information, and sucking up to sources do not constitute “ordinary newsgathering activities,” then how useful are the protections?
DOJ has announced its intention to respect ordinary newsgathering activities and even recognized constitutional protections for them, sort of (I look forward to the legal cases that cite that language, anyway). But until there’s a common understanding about when such activities constitute journalism and when they constitute spying, the protection has limited value.
If the ultimate idea is to protect newsgathering activities, then why not establish what those activities are and then actually protect them, regardless of whether they are tied to a certain kind of institution?
The First Amendment was written, in part, to eliminate the kind of official press that parrots only the King’s sanctioned views. But with its revised “News Media Policies,” DOJ gets us closer to having just that, an official press.
That’s because all the changes laid out in the new policy (some of which are good, some of which are obviously flawed) apply only to “members of the news media.” They repeat over and over and over and over, “news media.” I’m not sure they once utter the word “journalist” or “reporter.” And according to DOJ’s Domestic Investigation and Operations Guide, a whole slew of journalists are not included in their definition of “news media.”
DIOG does include online news in its definition of media (PDF 157).
“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.
But then it goes on to exclude bloggers from those included in the term “news media.”
The definition does not, however, include a person or entity who posts information or opinion on the Internet in blogs, chat rooms or social networking sites, such as YouTube, Facebook, or MySpace, unless that person or entity falls within the definition of a member of the media or a news organization under the other provisions within this section (e.g., a national news reporter who posts on his/her personal blog).
Then it goes onto lay out what I will call the “WikiLeaks exception.”
As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.
The definition does warn that if there is any doubt, the person should be treated as media. Nevertheless, the definition seems to exclude a whole bunch of people (including, probably, me), who are engaged in journalism.
The limitation of all these changes to the “news media” is most obvious when it treats the Privacy Protection Act — which should have prevented DOJ from treating James Rosen as a suspect. They say,
The Privacy Protection Act of 1980 (PPA), 42 U.S.C. § 2000aa, generally prohibits the search or seizure of work product and documentary materials held by individuals who have a purpose to disseminate information to the public. The PPA, however, contains a number of exceptions to its general prohibition, including the “suspect exception” which applies when there is “probable cause to believe that the person possessing such materials has committed or is committing a criminal offense to which the materials relate,” including the “receipt, possession, or communication of information relating to the national defense, classified information, or restricted data “under enumerated provisions. See 42 U.S.C. §§ 2000aa(a)(1) and (b)(1). Under current Department policy, a Deputy Assistant Attorney General may authorize an application for a search warrant that is covered by the PPA, and no higher level reviews or approvals are required.
First, the Department will modify its policy concerning search warrants covered by the PPA involving members of the news media to provide that work product materials and other documents may be sought under the “suspect exception” of the PPA only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities. Under the reviews policy, the Department would not seek search warrants under the PPA’s suspect exception if the sole purpose is the investigation of a person other than the member of the news media.
Second, the Department would revise current policy to elevate the current approval requirements and require the approval of the Attorney General for all search warrants and court orders issued pursuant to 18 U.S.C. § 2703(d) directed at members of the news media. [my emphasis]
The PPA, however, applies to all persons “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”
Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce;
I’m clearly covered by the PPA. But the FBI could easily decide to exclude me from this “news media” protection so as to be able to snoop into my work product.
Congratulations to the “members of the news media” who have been deemed the President’s official press. I hope you use your privileges wisely.
Update: I’ve learned that the issue of whom this applied to did come up in background meetings at DOJ; in fact, DOJ raised the issue. The problem is, there is no credentialing system that could define who gets this protection and DOJ didn’t want to lay it out (and most of the people invited have never been anything but a member of the news media, making it hard for them to understand how to differentiate a journalist).
Ultimately, I think DOJ is so anxious for Congress to pass a shield law (which they say elsewhere in their report) because it’ll mean Congress will do the dirty work of defining who is and who is not a journalist.
As we get further away from last week’s what’s-new-is-old counterterrorism speech, I’m increasingly convinced all that happened was the Administration yoked the word “continuing” onto the word “imminent” and declared an entirely new standard that just happens to replicate the existing one.
Which is why I think this detail, from Politico’s leaks-about-a-meeting-about-leaks story, is the most telling I’ve seen on the Holder meeting.
“The guidelines require a balance between law enforcement and freedom of the press, and we all argued that the balance was out of kilter, with the national security and law enforcement interests basically overwhelming the public’s right to get information,” one journalist at the meeting said. “The language concerning ‘aiding and abetting’ comes out of the Privacy [Protection] Act, and they discussed trying to revise that language so that reporters don’t need to be defined as co-conspirators in order to execute search warrants.”
This is a reference to part of the Privacy Act that prohibits the government from seizing media work product unless it is connected to a crime (see pages 5 ff for how it affected the James Rosen warrant application). After claiming Rosen was aiding and abetting a violation of the Espionage Act and therefore his emails could be seized, the FBI then said that since he was potentially criminally liable, he should not get notice. In other words, the aiding abetting was an investigative tactic DOJ used to get around protections put into place just for someone like Rosen.
And DOJ’s solution for abusing a protection meant to protect someone like Rosen is apparently to simply redefine the law, so it can overcome those protections without having to accuse Rosen of being a criminal.
The outcome would remain the same; DOJ would just avoid saying mean things about people associated with powerful media outlets.
And note, from the reports I’ve seen thus far, none of these crack journalists seem to have suggested to DOJ that even the way it was using the Espionage Act to go after sources (many of whom are whistleblowers) is a dangerous misapplication of statute, just like calling James Rosen a co-conspirator is. That is, DOJ’s use of the Espionage Act to give the clearance system more teeth than it was meant to have seems to have escaped these media representatives’ notice.
Ah well. If they had raised DOJ’s abuse of the Espionage Act, DOJ would just do what they appear to intend to do with its abuse of Privacy Act restrictions: redefine the terms and proceed as they had been.
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As you’ve likely heard already, NPR and others have reported that President Obama will nominate Jim Comey to lead the FBI.
I think Comey is a decent choice.
Much of the attention since this news broke has focused on Comey’s role in the hospital confrontation, where he threatened to resign unless the Bush Administration fixed the illegal wiretap program. That will clearly be a highlight of Comey’s confirmation discussion.
But just as much as Comey’s unsent resignation letter, I’m curious how these emails will play in his confirmation process.
They were similar Comey CYA, from the period in May 2005 when Dick Cheney was pushing Alberto Gonzales to reauthorize all the torture CIA had been doing since Jack Goldsmith had withdrawn the Bybee Two memo in 2004. While Comey did buy off on approving the waterboarding that had already been done (he unsuccessfully tried to limit it to one detainee whose treatment occurred after the Bybee Two memo was withdrawn), he also pushed hard — and failed — to get Alberto Gonzales to refuse to approve the techniques in combination, as they had reportedly always been used.
In the emails, he talks about when news of what was being approved broke (details of what freaked Comey out so much still haven’t become public), those pushing for torture would be gone. He regretted how much weaker Gonzales was than John Ashcroft, recalling that hospital bed scene.
I told him the people who were applying pressure now would not be there when the shit hit the fan. Rather they would simply say they had only asked for an opinion.
[snip]
It leaves me feeling sad for the Department and the AG.
[snip]
I just hope that when this all comes out, this institution doesn’t take the hit, but rather the hit is taken by those individuals who occupied positions at OLC and OAG and were too weak to stand up for the principles that undergird the rest of this great institution.
[snip]
People may think it strange to hear me say I miss John Ashcroft, but as intimidated as he could be by the WH, when it came to crunch-time, he stood up, even from an intensive care hospital bed. That backbone is gone.
Comey even tried to scare the torturers with warnings that the torture videos would one day become public — just six months before the torturers destroyed those videos.
There’s far more, which I laid out in this post and this post.
But what’s just as interesting as the actual content of the emails is the spin that NYT reporters Scott Shane and David Johnston gave it, presumably at the behest of the torturers who leaked it to them. They chose to ignore all the details about people like Cheney and Condi Rice pushing for more more more, immediately, and instead to focus on Comey’s assent to the memo effectively approving of the torture — including waterboarding — that had already been done.
Previously undisclosed Justice Department e-mail messages, interviews and newly declassified documents show that some of the lawyers, including James B. Comey, the deputy attorney general who argued repeatedly that the United States would regret using harsh methods, went along with a 2005 legal opinion asserting that the techniques used by the Central Intelligence Agency were lawful.
That opinion, giving the green light for the C.I.A. to use all 13 methods in interrogating terrorism suspects, including waterboarding and up to 180 hours of sleep deprivation, “was ready to go out and I concurred,” Mr. Comey wrote to a colleague in an April 27, 2005, e-mail message obtained by The New York Times.
It’s true. Comey did buy off on that memo. He did buy off on a memo approving 7.5 days of sleep deprivation and waterboarding (though not, as Cheney was pushing so hard to do, together).
During John Brennan’s confirmation hearing, Saxby Chambliss made sure to get John Brennan’s much more complacent involvement in torture into the record. He made sure to get Brennan to admit to having submitted FISA warrant applications that relied on tortured information. Those efforts, I suspect, were designed to make it a lot harder for Brennan to separate the CIA from torture going forward.
The evidence in these emails is in some ways more damning, but in most ways far, far less, than what we know of Brennan’s role in torture.
But I expect the same people who leaked these emails to NYT’s remarkably obedient reporters will try the line again.
And why not? At least one of those credulous reporters is still parroting his sources’ spin.
In an article flattering Eric Holder’s sense of remorse once he realized how inappropriate it was to claim a journalist engaging in flattery might be a co-conspirator in a leak, Daniel Klaidman quotes a Holder friend explaining that the Attorney General doesn’t see himself as some kind of Torqemada figure pursuing journalists.
But for Attorney General Eric Holder, the gravity of the situation didn’t fully sink in until Monday morning when he read the Post’s front-page story, sitting at his kitchen table. Quoting from the affidavit, the story detailed how agents had tracked Rosen’s movements in and out of the State Department, perused his private emails, and traced the timing of his calls to the State Department security adviser suspected of leaking to him. Then the story, quoting the stark, clinical language of the affidavit, described Rosen as “at the very least … an aider, abettor and/or co-conspirator” in the crime. Holder knew that Justice would be besieged by the twin leak probes; but, according to aides, he was also beginning to feel a creeping sense of personal remorse.
[snip]
As attorney general, a position at the intersection of law, politics, and investigations, Holder has been at the center of partisan controversy almost since taking office. But sources close to the attorney general says he has been particularly stung by the leak controversy, in large part because his department’s—and his own—actions are at odds with his image of himself as a pragmatic lawyer with liberal instincts and a well-honed sense of balance—not unlike the president he serves. “Look, Eric sees himself fundamentally as a progressive, not some Torquemada out to silence the press,” says a friend who asked not to be identified. [my emphasis]
Granted, the Torquemada metaphor was Holder’s friend’s, not his own. And granted, Holder’s DOJ has worked to avoid the kind of Muslim-bashing people like Peter King have called for (though his DOJ has also slow-walked its investigation into NYPD’s profiling of Muslims and allowed FBI to engage in similar behavior).
But the reference to Torquemda highlighted how limited this remorse is — just to investigations involving journalists, not Muslims, for example — and how thin Holder’s apparent understanding of the problem remains.