The Obama administration's unprecedented war on national security whistleblowers continues to bleed into a war on journalism. The US often gets high praise for protecting the free press. In recent months, Attorney General Eric Holder has giving verbal assurances that he will not prosecute journalists and revised internal guidelines on subpoenaing reporters.
But Holder's rhetoric does not match the Justice Department's actions in aggressively prosecuting whistleblowers and catching journalists in the cross-hairs. The Justice Department is prosecuting State Department arms expert Steven Kim under the Espionage Act for allegedly telling FOX News that North Korea was planning to respond to a U.N. Security Council resolution by setting off another nuclear test--clearly of public interest to South Korea, China, and the rest of the world--and that was not sensitive.
The Justice Department is insisting on using evidence against Kim that it gathered by searching a reporter's personal e-mail account and accusing the reporter of being a co-conspirator to violate the Espionage Act.
From WaPo:
. . . the guidelines effectively acknowledge that investigators should not have gathered e-mail records for Fox News reporter James Rosen to build their case against Kim. A search warrant for Rosen’s personal e-mails characterized the reporter as a possible criminal “co-conspirator” in the alleged misconduct even though the department has said it had no intention of charging Rosen.
Under the amended guidelines, such a warrant can be obtained only if the reporter is the target of the investigation.
The Justice Department's refusal to rethink Kim prosecution in light of its own clear guidelines that would have prevented today makes the "revised guidelines" a flashy distraction from the reality, that the Justice Department continues to use "ill-gotten evidence" against a whistleblower.
Considering the glaring disconnect between Holder's rhetoric and the Justice Department's actions, it is no surprise Glenn Greenwald and Julian Assange are not reassured by Holder's public statements that the Justice Department will not target journalists for doing their jobs. In another Espionage Act case, New York Times reporter and author Jim Risen still faces jail because the Obama administration refused to drop demands that Risen testify about his source, and has repeatedly argued in court that there is no Reporter's Privilege protecting journalists' communications with sources.
In an eery foreshadowing of the chilling prior restraint on the free press that could happen in the U.S. if the Justice Department continues to criminalize reporting, Guardian editor Alan Rusbridger was hauled before a U.K. Parliamentary Committee and repeatedly accused of violating anti-Terrorism laws by reporting on the revelations of illegal surveillance from whistleblower Edward Snowden. Rubridger remained remarkably calm in light of the criminal allegations and heralded the First Amendment as protecting against such prior restraint in the U.S. Nonetheless, despite Holder's public rhetoric about protecting the free press, the Justice Department has systematically prosecuted sources and subpoenaed journalist, and - as seen in the Kim case - is, at least in practice, showing no sign of backing down from its anti-Free Press stance.
If Holder acted on his stated principles, he would give immunity letters to the whistleblowers being targeted under the Espionage Act, drop the subpoena of Jim Risen, cease arguing against a Reporter's Shield privilege, and abandon attempts to use tainted evidence gathered from surveillance of journalists.