Obama Appointees Diverge on Security Crackdowns

James RisenThe Obama Justice Department protested a "reporter's privilege" in federal court May 18, two days after an Obama-appointed federal judge separately enjoined the administration from enforcing a controversial new national security law.

The different developments illustrate the rapid changes underway in traditional civil liberties. 

In the May 18 hearing in Richmond, Virginia,Justice Department lawyer Robert Parker told a three-judge appellate panel that New York Times reporter James Risen has no privilege to protect the confidentiality of his CIA sources. Beginning in the Bush administration, DOJ has been trying to use him as a witness to prosecute former CIA officer Jeffrey Sterling, who was indicted this year on charges of leaking classified information to Risen about a failed plot against the Iranian government.

Risen, author of the cutting-edge 2006 book State of War, told a May 1 audience at the National Press Club that the case is part of dangerous crackdown by federal authorities on reporters and their sources. “The fundamental issue,” said Risen to the group,  “is whether you can have a democracy without aggressive reporting. I don’t thinLanny Breuerk you can.”

The Obama Justice Department has launched six high-profile criminal charges against employees or former employees widely regarded in journnalism and civil rights circles as whistle-blowers. The Justice Department's criminal division is led by Assistant Attorney Gen. Lanny Breuer, left, a former law partner of Attorney Gen. Eric Holder.

In a separate case in New York City's federal court, Obama-appointed U.S. District Judge Katherine Forest enjoined the administration's indefinite detention provisions of a new last December on the ground that they probably violate the First and Fifth Amendments. The ruling on the new National Defense Authorization Act (NDAA) was a major and largely unexpected victory for the plaintiffs.

"The ruling was a huge victory for the protection of free speech," commented co-plaintiff Chris Hedges, an author and former New York Times reporter. "Judge Forrest struck down language in the law that she said gave the government the ability to incarcerate people based on what they said or wrote. Maybe the ruling won't last. Maybe it will be overturned. But we and other Americans are freer today than we were a week ago. And there is something in this."

 

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Related News Coverage

Leak Prosecutions
Update: Salon, WH leaks for propaganda film, Glenn Greenwald, May 23, 2012. The administration takes a break from its war on whistleblowers to provide classified information to Hollywood. As is now well documented, the Obama administration has waged an unprecedented war on whistleblowers, prosecuting more of them under espionage statutes than all prior administrations combined: twice as many as all prior administrations combined, in fact. They are attempting, or have attempted, to imprison whistleblowers who exposed corrupt and illegal NSA eavesdropping, dangerously inept efforts to impede Iran’s nuclear program (which likely strengthened it), the destructive uses of torture, and a litany of previously unknown U.S.-caused civilian deaths and other American war crimes.  But there’s one type of leak of classified information that the White House not only approves of but itself routinely exploits: the type that glorifies the President for propagandistic ends.

Protecting Sources
Huffington Post, 'Reporter's Privilege' Under Fire From Obama Administration Amid Broader War On Leaks, Dan Froomkin and Michael Calderone, May 18, 2012.  The Obama administration Friday morning continued its headlong attack on the right of reporters to protect their confidential sources in leak investigations. Before a panel of the Fourth Circuit Court of Appeals, a Department of Justice lawyer argued that New York Times reporter James Risen should be forced to testify in the trial of former CIA agent Jeffrey Sterling, who is charged with leaking classified information to Risen about a botched plot against the Iranian government. Rather than arguing the specifics of the case, DOJ appellate lawyer Robert A. Parker asserted that there is no reporter's privilege when a journalist receives an illegal leak of national security secrets. When Judge Robert Gregory asked Parker to explain why the public's interest in a free press was outweighed by the specific circumstances in this case, Parker declined. "I don’t think there would be a balancing test because there's no privilege in the first place," Parker said. "The salient point is that Risen is the only eyewitness to this crime."  Gregory told Parker that the Supreme Court's Branzburg v. Hayes decision -- which Parker cited as precedent for forcing journalists to testify when they had witnessed a crime -- involved the witnessing of a different crime, "not the disclosure itself."  Parker said what Risen did was "analogous" to a journalist receiving drugs from a confidential source, and then refusing to testify about it.  "You think so?" Gregory asked, clearly unconvinced.

New York Times, Appeals Panel Weighs Question on Press Rights, Charlie Savage, May 18, 2012.  At least two members of a three-judge federal appeals court panel appeared to express some skepticism on Friday about prosecutors’ request that they overturn a district judge’s order protecting a journalist from being forced to identify his confidential sources in the trial of a former Central Intelligence Agency officer. Nearly an hour of oral arguments here before the United States Court of Appeals for the Fourth Circuit concluded with no definitive answer as to how the court will rule about whether the journalist, James Risen, can be forced to testify in a high-profile leak case that has raised a significant test of the First Amendment. One judge, Roger Gregory, sharply criticized prosecutors’ contention that the Constitution offers no special protection to a reporter who is a witness to a particular type of crime: the unauthorized disclosure of government secrets to that very reporter by an official.

Stripping Citizens of Due Process
TruthDig /OpEd News, A Victory for All of Us, Chris Hedges, May 18, 2012.  In January, attorneys Carl Mayer and Bruce Afran asked me to be the lead plaintiff in a lawsuit against President Barack Obama and Defense Secretary Leon Panetta that challenged the harsh provisions of the National Defense Authorization Act (NDAA). None of us thought we would win. But every once in a while the gods smile on the damned.  U.S. District Judge Katherine Forrest, in a 68-page opinion, ruled Wednesday that Section 1021 of the NDAA was unconstitutional. It was a stunning and monumental victory. With her ruling she returned us to a country where -- as it was before Obama signed this act into law Dec. 31 -- the government cannot strip a U.S. citizen of due process or use the military to arrest him or her and then hold him or her in military prison indefinitely.

Salon, Federal court enjoins NDAA, Glenn Greenwald, May 16, 2012.  A federal district judge today, the newly-appointed Katherine Forrest of the Southern District of New York, issued an amazing ruling: one which preliminarily enjoins enforcement of the highly controversial indefinite provisions of the National Defense Authorization Act, enacted by Congress and signed into law by President Obama last December. This afternoon’s ruling came as part of a lawsuit brought by seven dissident plaintiffs — including Chris Hedges, Dan Ellsberg, Noam Chomsky, and Birgitta Jonsdottir — alleging that the NDAA violates ”both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution.”

Justice Integrity Project, Press Club Forum Probes 'Obama's War On Leaks,' Andrew Kreig, May 2, 2012.  The nation’s two leading press clubs convened experts on national security May 1 in Washington for a gripping, historically important assessment of the Obama administration’s shocking prosecutions of government news sources. The administration took office on promises to protect whistle-blowers. But it has since repeatedly cracked down on leakers, citing the Espionage Act in six recent cases as a basis for criminal prosecution. New York Times reporter James Risen, who has broken some of the most important national security stories of the decade, was one of the panelists at the National Press Club, which organized the forum at its headquarters in cooperation with the New York-based Overseas Press Club. Risen has undergone years of financially damaging federal investigation and potential imprisonment for refusing to reveal his government sources.

Catching Our Attention on Justice & Integrity Issues
Harper's No Comment, Blocking Pardons at Justice, Scott Horton, May 16, 2012. ProPublica’s Dafna Linzer continues her examination of the federal pardons process with a piece, excerpted in Monday’s Washington Post, that contrasts two pardon candidates. Both cases are the sort of victimless drug offenses that clog the federal detentions system. One involves a star athlete with no prior criminal record, and a prosecutor’s office and judge who favored immediate commutation of the sentence. The athlete was present at a drug sale, and he introduced the parties to one another, for which he received a gratuity from the dealer. Though such offenses are theoretically prosecutable, this very rarely happens.

Alabama Courts
Legal Schnauzer, Sex, Drugs, and Violence Are At The Heart Of Divorce Case Against Siegelman Judge Mark Fuller, Roger Shuler, May 18, 2012.  A request for admissions can be one of the most entertaining documents in a lawsuit. The requesting party, in so many words, is saying, "We all know the following statements are true, so why don't you admit to them so we can haggle about something else?"  It can be a rare moment of clarity in a legal action, where one party is trying to cut through the many layers of BS and establish facts. That doesn't mean the receiving party is going to admit to everything--or anything--in the request. But the effort to get at what one party considers to be the clear truth can be most enlightening.

OpEd News, Alabama Judicial Scandal Could Taint Many Cases, Not Just Siegelman's, Andrew Kreig, May 16, 2012. An Alabama newspaper exposed a scandal May 16 that deserves national prominence. The headline was "Federal judge's lengthy affair with court worker is exposed."  This is a scandal not simply for the judge, Mark Everett Fuller, shown at right in a photo by my research colleague Phil Fleming. It is a lifetime shame for those in the Justice Department, federal court system and the United States Senate who have coddled and protected him for an entire decade during his obvious previous disgraces.

News Media
Bill Maher / Huffington Post, Dan Rather: Corporate Media 'Is In Bed With' Washington, (VIDEO) Staff report, May 20, 2012. Dan Rather slammed corporate media on Friday night, alleging that news coverage is guided by political interests and profits.  The former CBS News anchor has recently returned to the spotlight, speaking out about his former employer and defending the controversial Bush National Guard story that ended his storied career at the network. On Friday, Rather appeared on Bill Maher's show to discuss his new book "Rather Outspoken." He spoke out about the controversy again, and stood by his story (his comments start at the 1:50 mark in the video above). He said that he was fired because CBS News caved into the Bush administration's demands. "The powers that be and the corporate structure were very uncomfortable with the story," Rather said. "They got pressured by the Bush administration and others in Washington, and it cost a lot of people their jobs, including myself."