RISK: A Film by Laura Poitras

[grarpamp]

https://cpj.org/blog/2017/05/how-us-espionage-act-can-be-used-against-journalis.php
youtube: HqTlN_kGdLo

Earlier this week, Department of Homeland Security Secretary John
Kelly joked about Trump using a saber on the press and U.S. Senator
Jim Risch told CNN the press should be questioning the Washington Post
about its sources. Then, on May 16, The New York Times reported that
President Donald Trump allegedly asked former FBI director James Comey
to consider putting journalists in prison for publishing classified
information. If the request, which is allegedly detailed in a memo
from Comey, is true it represents a serious risk to reporters,
according to First Amendment attorneys.

The idea that journalists could be jailed in the U.S. for doing their
job is not new. Under the George W. Bush administration, New York
Times reporter Judith Miller spent 85 days in jail on contempt of
court charges for refusing to testify about the identity of a source.
The Obama administration prosecuted more individuals for leaking
classified information than any other U.S. president and used the
threat of prison in its unsuccessful seven-year battle to compel New
York Times reporter James Risen to testify about his sources.

While journalists have been caught up in prosecutions of leakers, a
move to directly target and jail them would be a marked change for the
government. The likelihood of journalists in the U.S. being imprisoned
for publishing classified information has not been legally tested, but
lawyers point out that sections of U.S. law could expose them to
prosecution.

James Goodale, who represented The New York Times in the landmark
libel suit New York Times v. Sullivan and in the Pentagon Papers case,
told CPJ that a journalist could be charged under the Espionage Act
for conspiring with a source to publish classified information. "I
have thought from the moment [Trump] became president that the
greatest threat to the free press is that he and his attorney general
would try to jail reporters," Goodale, author of Fighting for the
Press: The Inside Story of the Pentagon Papers and Other Battles,
said. [EDITOR'S NOTE: Goodale is a senior adviser to CPJ and former
chair of its board.]

The Espionage Act of 1917, passed shortly after the U.S. entered World
War One, criminalizes the disclosure of classified information. Since
1971 it has been used to charge at least 12 government workers who
shared classified information with journalists (eight of those cases
occurred under Obama) but it has never been used to directly prosecute
a journalist.

"The Espionage Act is 100 years old this year and remains what Supreme
Court Justice John Marshall Harlan referred to as a 'singularly opaque
document.' That's the problem. It could be used by an administration
angry enough at the press to seek to criminalize routine and often
societally beneficial revelations of governmental misconduct," Floyd
Abrams, who represented the New York Times in the Pentagon Papers
case, said in an email to CPJ. He called Trump's alleged statement
"unsurprising but deeply disturbing."

The New York Times report on Trump's alleged statement did not include
how Comey responded. In March however, a House Intelligence Committee
Hearing questioned Comey on his views of prosecuting journalists for
publishing classified leaks.

"That's a harder question, as to whether a reporter incurs criminal
liability by publishing classified information, and one probably
beyond my ken," Comey said in response to the question by Rep. Trey
Gowdy. "I'm not aware of any [exception protecting reporters] carved
out in the statute, but I don't think a reporter has been prosecuted
in my lifetime."

The idea that journalists could be charged alongside leakers has some
precedent. In 2010, the FBI seized Fox News reporter James Rosen's
email records in a 2010 Espionage Act case against a state department
employee accused of leaking information about North Korea. The
reporter was named as a co-conspirator in the FBI's affidavit in
support of the court order, but the Justice Department never formally
indicted him, according to reports. Former Attorney General Eric
Holder later issued guidelines that make it harder, though not
impossible, for the Department of Justice to subpoena journalists'
records.

Any prosecution would have to go through the Justice Department, but
Attorney General Jeff Sessions has not taken a vocal stand in defense
of press freedom. During his Senate Judiciary hearing, Sessions said
that he was unsure if he would commit to following the Justice
Department guidelines for subpoenaing reporters. Last month he told
reporters that arresting Julian Assange is "a priority." When CNN
anchor Kate Bolduan asked Sessions whether people should be concerned
that this would open the door for prosecutions against CNN and The New
York Times, Sessions responded, "that's speculative and I'm not able
to comment."

"The president cannot jail journalists but the Attorney General is in
a position to jail journalists, and I think we know a bit the general
direction from which he's coming because he said his priority is to
prosecute WikiLeaks," said Goodale, who added that any prosecution of
WikiLeaks would create a dangerous precedent for publishers that
report on classified documents, and would make it easier to prosecute
reporters in the future.

"The greatest danger the press has is a successful prosecution of
WikiLeaks in which the attorney general is able to prove that there is
a conspiracy between WikiLeaks and its sources...I don't get much
pleasure defending [Assange] but functionally what he does is get
information published," Goodale said.

Checks and balances are in place that should make it harder for the
government to prosecute journalists. The Reporters Committee for
Freedom of the Press, an organization dedicated to providing legal
assistance to journalists, said in a statement this week, "No
president gets to jail journalists. Reporters are protected by judges
and juries, by a congress that relies on them to stay informed, and by
a Justice Department that for decades has honored the role of a free
press by spurning prosecutions of journalists for publishing leaks of
classified information."

The First Amendment attorneys with whom CPJ spoke said they are
cautiously optimistic that even if a journalist were prosecuted and
convicted, a higher court could overturn the ruling. "There is little
case law on the subject precisely because no president has sought to
use it in the manner adverted to by President Trump. The arguments
against reading the statute in the fashion referred to by the
president are strong and I think would likely prevail," said Abrams.

Both attorneys cautioned however, that a victory for press freedom is
far from certain.

"The judges may deep-six the theory [that reporters can be prosecuted
under the Espionage Act], and I hope they would on the basis of the
First Amendment, but the risk is that the prosecution goes forward and
you have to wait to be saved at the last minute by the Supreme Court.
Or maybe you won't be," Goodale said.