The U.S. attorney general proudly trumpets, "We have tried more leak cases . . . during the course of this administration than any other." Critics from across the aisle call for his resignation. Despite pressing no charges, the Justice Department has labeled one respected investigative reporter a criminal "co-conspirator." The Washington Post’s Leonard Downie concludes, efforts to control information are "the most aggressive since the Nixon administration."
These events transpired in 2012 and 2013. The president at that time? Barack Obama. The attorney general? Eric Holder. The journalist? Fox News reporter James Rosen. And the critics fighting to protect journalist’s first amendment right to free speech? Leaders from the Republican Party.
Resistance to the Obama administration’s leak investigations was well placed. Whistleblowers, in partnership with journalists, can expose government overreach and error. Consider leaks and associated reporting on the National Security Agency’s (NSA) illegal surveillance of U.S citizens or the over one billion dollars of taxpayer’s money wasted on the NSA's Trailblazer Project.
Fast forward to 2017 and U.S. Attorney General Jeff Sessions is building the case for even greater government power. He’s considering strengthening the Justice Department’s powers to, during a leak investigation, subpoena a journalist to demand that they reveal their source as well as phone or email records. This is a direct attack on the foundations of America’s democracy.
I do not begrudge Sessions for pursuing legal action against public officials who leak. With civil disobedience comes consequences. Threats to national security mean leaking classified information can jeopardize government’s primary role — protecting its citizens.
Government exerting authority over journalists, however, is an entirely different matter. Currently, the Justice Department, led by Sessions, determines its own guidelines regarding when a journalist is issued with a subpoena requiring them to reveal information. This is the equivalent of a baseball pitcher changing the rules to widen the strike zone.
Following Sessions’ announcement, U.S. House Speaker Paul Ryan, R-Wis., defended journalists saying national security threats are "the problem of the leaker, not the journalist."
There is a way better way to balance national security with press freedoms. If Sessions wants to "respect the important role of the press," as he has stated, he should seek independent oversight from a judge to determine whether subpoena of a journalist is justified. If a leak is truly a threat to national security, and obtaining information from journalists would mitigate that threat, a judge can make that determination using a strict legal standard.
Increased judicial oversight of subpoenas reflects a bipartisan proposal, put forward in 2013 by Sens. Lindsey Graham, R-S.C., and Chuck Schumer, D.-N.Y. The senators spoke of the important "check and balance" provided by the courts to prevent the whim of an attorney general using government power unfairly. Subsequently translated into Free Flow of Information Act, amidst debate over the definition of a journalist, the Act’s momentum has petered out. The principles underpinning this Act must now be rekindled.
As part of his promise to crackdown on leakers, Sessions explained the press cannot "place lives at risk with impunity." He presented no evidence of harm caused by recent leaks. No Edward Snowden or Chelsea Manning equivalent. The only specific leak cited by Sessions was the transcripts of Trump talking to foreign leaders — potentially leaked from the White House itself. It seems the arsonists have arrived to put out the fire.
Look to history to observe the impact of a crippled press on democracy. During his three-decade reign of the Soviet Union, Communist Dictator Joseph Stalin systematically decimated the free press. Through censorship and persecution of mainstream society, the state controlled what people watched, listened to and were allowed to say. Stalin once said, "print is the sharpest and the strongest weapon of our party."
Trump has already sought to discredit all but the most administration friendly media including unprecedented censorship in the White House press briefing room. His daughter-in-law has started a "Real News" series on Facebook – essentially state sanctioned propaganda. He has overturned Internet privacy laws that prevented companies sharing your browsing history and location. Just this week, the Department of Justice has demanded an Internet service provider, Dreamboat, reveal the identities of all 1.3 million visitors to a website critical of Trump. That’s a direct affront to free association and speech.
Conservatives — both voters and in Congress — face a choice. Will they stand for traditional conservative values — freedom of speech, small government, and support for the constitution and rule of law? Or will they support, tacitly or otherwise, the Trump administration’s increasingly authoritarian regime?
In searching for your answer, I implore you to rise above partisan rancor and support a free press. The future of America’s democracy depends on it.
Matt Tyler is an economist who works to improve government effectiveness with a particular focus on social services. Tyler is a former management consultant, where he supported executives in developing and implementing strategy across financial services, telecommunications, manufacturing, postal services, and retail. He worked as an economist for Australia’s foreign service and as a policy adviser to the Federal Australian Labor Party on economic and social policy. He has also worked for Third Sector Capital Partners where he assisted with the construction of two Social Impact Bonds in Salt Lake City. He is currently completing a Master of Public Policy at Harvard’s Kennedy School of Government. He tweets as @matt_b_tyler. To read more of his reports — Click Here Now.
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