Josh Gerstein: 2012 First Amendment Awards Dinner Remarks

I’d like to thank Bill for the generous introduction. Bill mentioned that a couple of decades ago now I helped get onto the books a law that required colleges to make their crime logs public. Now I hear from a report published by the reporters committee’s sister organization, the Student Press Law Center, that student journalists now view that law as entirely inadequate.

I was actually kind of thrilled by that. Reporters, especially young reporters, are always agitating for more. That’s great, and as it should be.

I’d like to thank the Reporters Committee for this award.

Thanks to Lucy Dalglish, who did tremendous work spearheading the group and being the go-to voice for journalists like me on First Amendment issues. I wish you well in your new role at the University of Maryland. And good luck to the incoming director, Bruce Brown. His leadership and the Committee’s voice is surely needed now as ever.

I’d like to thank POLITICO for enabling me to do this kind of First Amendment/transparency coverage for the last 3½ years — sometimes as my day job — sometimes in addition to, or in lieu of, my day job covering the White House. John Harris and Jim Vandehei, with the backing of Robert Allbritton and Fred Ryan, have built, from scratch, an incredibly energetic, vibrant news organization and managed to do it at a moment when so many people were filled with gloom and doom about the news business. That is really a tour de force. It’s a great place to work, even if most of the young staff stares back blankly when I refer to the early scandals of the Clinton era or when I suggest the sum total of  human knowledge on a subject may not actually be on the Internet.

I’d like to thank my immediate editors Rachel Smolkin and Isaac Dovere for their tolerance of my sometime eccentric interests.

And also thanks to my wife, June, for putting up with my blogging and writing on occasions when she’d rather I be doing something else, like giving our two young daughters a bath.

During the 12 years or so I spent in television, I was taught not to try to make more than one point in a story. However, the five minutes I have tonight is about three times as long as the stories I used to do for ABC News, so I’m going to try to squeeze in two points about the work the Reporters Committee and its friends do and support.

I don’t have the experience of many of the other distinguished people being honored tonight like Fred Graham, Brian Lamb, Barbara Wall and Nina Totenberg. But I have covered three White Houses now, Clinton, the second President Bush and now Obama, so I hope you’ll indulge me making a point about executive power.

Executive power got a bad name during the Bush administration. Sometimes the best thing for the press, for working reporters and the public is good ol’ fashioned, unilateral executive action.

One recent example of this is the work the Committee did to open up the records surrounding the military commissions at Guantanamo. David Schulz of Levin Sullivan Koch and Schulz and Karen Kaiser of the AP poked and prodded the Pentagon into making sure that journalists, NGOs, and everyone else, could see the dockets, filings and orders of the military commissions trying war crimes. Because of that effort, there is at long last a website where you can see that info and where journalists can make sense of what is happening in hearings at Gitmo.

This is something that happened not because any court ordered it, or found a First Amendment right, but because the Executive Branch was persuaded to use its discretion to allow this kind of transparency.

While the Obama administration deserves credit for the Gitmo improvements, their willingness to allow access there does raise questions about why the administration that  promised to be the most transparent in history hasn’t sprinkled some of that transparency pixie dust in other areas.

At the moment, a legal fight is underway to bring a similar kind of transparency to the court martial of alleged WikiLeaks source Bradley Manning. Gregg Leslie and Kristen Rasmussen at the Reporters Committee, helped put together an amicus brief that more than 30 news outlets and organization signed onto, arguing that courts martial should provide basic records to the public and do it in a timely way. That legal challenge will be heard by the military’s highest court next month and could well end up at the Supreme Court. But it doesn’t need to.

The Obama administration and the Pentagon could decide tomorrow to make the filings, orders and dockets in the Manning court martial public — like they would be in any civilian court in the country — and put them online. Why officials have refused to do that is baffling. It would seem that a criminal trial of a U.S. citizen, Army private should be at least as open as that of an alleged terrorist, foreign-national at Guantanamo.

Another area where the Obama administration could use its discretion to show respect for the role of the press is in the case of New York Times reporter James Risen, who is facing the threat of jail for refusing to reveal his sources on the CIA’s efforts against Iran’s nuclear program.

After signaling that it was willing to give up on forcing Risen to testify against an ex-CIA officer charged with leaking, the Justice Department reversed course and took Risen’s claim of reporters’ privilege to the 4th Circuit. That could easily wind up at the Supreme Court.  But it, also, doesn’t need to. The Obama administration could decide, as a matter of discretion, to leave Jim out of it as they were ready to do last year before they escalated this fight the Bush administration started.

The second point I want to make tonight is this: I like media lawyers. Some of my best friends are media lawyers. I’m 100 percent for journalists standing up for their rights and the rights of the public to know what the government is  up to. And having good counsel when they do so. But to be very candid, the greater problem for many reporters in this era is not getting access to the courts, but having the resources to actually cover them. The meat and potatoes of reporting on what’s happening in the legal system is achieved not by filing motions, but by actually sending reporters into courts to watch what’s happening. There is a lot of vital news happening in our courts today that is simply not being covered.

This kind of basic reporting on the courts has taken a huge hit in the current economic climate. Newspapers that used to have a reporter in every courthouse in their communities, now are lucky to have a single reporter covering the dozen or so courts in their coverage zone. TV stations and networks cover a few high-profile cases, but little more. Some reporters wouldn’t have any idea if they’re entitled to cover jury selection or copy a court exhibit because they’ve never tried, or been allowed to try.

So I’d just close with a plea to those in this room who make the assignments and sign the paychecks that, as you do that, you keep in mind the really critical and unique role the press plays in keeping the legal system and the courts honest--and how important it is that the rights the Reporters Committee has fought for so hard for more than four decades not be allowed to atrophy due to disuse.

Thank you so much.