By Norman Solomon
The part of the First
Amendment that prohibits “abridging the freedom … of the press” is now up
against the wall, as the Obama administration continues to assault the kind of
journalism that can expose government secrets.
Last Friday the administration
got what it wanted – an ice-cold chilling effect — from the Fourth
Circuit Court of Appeals, which ruled on the case of New York Times reporter James Risen. The court “delivered a blow to investigative journalism in
America by ruling that reporters have no First Amendment protection that would
safeguard the confidentiality of their sources in the event of a criminal trial,”
the Guardian reported.
The Executive Branch fought
for that ruling — and is now celebrating. “We
agree with the decision,” said a Justice Department spokesman. “We are
examining the next steps in the prosecution of this case.” The Risen case, and
potentially many others, are now under the ominous shadow of the Appeals Court’s
pronouncement: “There is no
First Amendment testimonial privilege, absolute or qualified, that protects a
reporter from being compelled to testify … in criminal proceedings.”
At the
Freedom of the Press Foundation, co-founder Trevor Timm calls the court ruling “the most significant reporter’s
privilege decision in decades” and asserts that the court “eviscerated that
privilege.” He’s not exaggerating. Press freedom is at stake.
Journalists who can be compelled to violate the confidentiality of their
sources, or otherwise go to prison, are reduced to doing little more than
providing stenographic services to pass along the official story. That’s what the
White House wants.
The federal Fourth
Circuit covers the geographical area where most of the U.S. government’s
intelligence, surveillance and top-level military agencies — including the NSA
and CIA — are headquartered. The ruling “pretty much guts national security
journalism in the states in which it matters,” Marcy Wheeler writes.
That court decision came
seven days after the Justice Department released its “News Media Policies” report
announcing “significant revisions to the Department’s policies regarding
investigations that involve members of the news media.” The report offered assurances
that “members of the news media will not be subject to prosecution based solely
on newsgathering activities.” (Hey
thanks!) But the document quickly added that the government will take such
action “as a last resort” when seeking information that is “essential to a
successful investigation or prosecution.”
Translation: We won’t prosecute journalists for doing
their jobs unless we really want to.
Over the weekend, some
news accounts described Friday’s court decision as bad timing for Attorney General
Eric Holder, who has scrambled in recent weeks to soothe anger at the Justice Department’s
surveillance of journalists. “The ruling was awkwardly timed for the Obama
administration,” the New York Times reported.
But the ruling wasn’t just “awkwardly timed” — it was revealing,
and it underscored just how hostile the Obama White House has become toward
freedom of the press.
News broke in May that
the Justice Department had seized
records of calls on more than 20 phone lines used by Associated Press
reporters over a two-month period and had also done intensive
surveillance of a Fox News reporter that included obtaining phone
records and reading his emails. Since then, the Obama administration tried to
defuse the explosive reaction without actually retreating from its offensive
against press freedom.
At a news conference two months
ago, when President Obama refused to say a critical word about his Justice
Department’s targeted surveillance of reporters, he touted plans to reintroduce
a bill for a federal shield law so journalists can protect their sources. But
Obama didn’t mention that he has insisted on
a “national security exception” that would make such a law approximately
worthless for reporters doing the kind of reporting that has resulted
in government surveillance — and has sometimes landed them in federal court.
Obama’s current notion of
a potential shield law would leave his administration fully able to block
protection of journalistic sources. In a mid-May article — headlined “White
House Shield Bill Could Actually Make It Easier for the Government to Get
Journalists’ Sources” — the Freedom of the Press Foundation shed
light on the duplicity: As a supposed concession to press freedom, the
president was calling for reintroduction of a 2009 Senate bill that “would not
have helped the Associated Press in this case, and worse, it would actually
make it easier for the Justice Department to subpoena journalists covering
national security issues.”
Whether
hyping a scenario for a shield law or citing new Justice Department guidelines
for news media policies, the cranked-up spin from the administration’s PR
machinery does not change the fact that Obama is doubling down on a commitment
to routine surveillance of everyone, along with extreme measures specifically aimed
at journalists — and whistleblowers.
The administration’s efforts
to quash press freedom are in sync with its unrelenting persecution of whistleblowers.
The purpose is to further choke off the flow of crucial information to the
public, making informed “consent of the governed” impossible while imposing massive
surveillance and other violations of the First, Fourth and Fifth Amendments.
Behind the assault on civil liberties is maintenance of a warfare state with
huge corporate military contracts and endless war. The whole agenda is
repugnant and completely unacceptable.
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Norman
Solomon is co-founder of RootsAction.org and founding director of the Institute
for Public Accuracy. His books include “War Made Easy: How Presidents and
Pundits Keep Spinning Us to Death.”