Last week, Reporters Committee Executive Director Bruce Brown joined journalists and media lawyers at the Center for a New American Security’s annual conference to discuss the challenges journalists face when reporting on sensitive national security issues, including the government’s seizure of journalists’ records as part of leaks investigations.
CNAS Adjunct Senior Fellow Carrie Cordero moderated the panel discussion, “Reporting America’s Secrets: Journalism, Classified Information, and the Age of Leaks,” with Brown, Just Security Editorial Director Kate Brannen, Knight First Amendment Institute Senior Staff Attorney Alex Abdo and Washington Post Staff Writer Shane Harris.
During the panel, Brown highlighted the Reporters Committee’s ongoing work to facilitate discussions between news organizations and the Department of Justice about U.S. attorney general guidelines that protect journalists’ records from being seized in leaks investigations. Following revelations in 2013 that the Justice Department obtained Associated Press phone records and executed a search warrant for a Fox News reporter’s emails, the Reporters Committee worked with the Justice Department to revise the guidelines to strengthen protections for journalists and improve communication between the government and the press.
Among the revisions was a new presumption that the Justice Department notify journalists and news organizations before seizing their materials from third parties such as phone companies or email providers — unless doing so could compromise an investigation — to allow them to challenge the seizure or the scope of the materials sought.
Brown noted that while the internal guidelines do not carry the force of law, they have formed a fundamental bedrock of the relationship between news organizations and the Justice Department. “The guidelines have always been about balancing these two interests [of a free press and law enforcement],” Brown said.
The panel also touched on the recent seizure of phone and email records belonging to journalist Ali Watkins as part of the investigation of James Wolfe, former director of security for the U.S. Senate Intelligence Committee, who is charged with making false statements to federal agents as part of a leaks probe.
Brown explained that under the Obama administration, the Justice Department seized journalists’ records in cases where the government was prosecuting individuals for of unauthorized disclosures of classified information. He noted that the seizure of Watkins’ records as part of efforts to prosecute an individual for lying to investigators was unusual and questioned whether it was necessary to intrude into a reporter’s communications in order to bring the indictment.
“There’s concern that if the [false statement statute] is used routinely as a trap for government officials who talk to reporters, that would be a really dangerous path for this country,” Brown said.
Earlier this month, Brown called on the Justice Department to explain how its actions in the Wolfe indictment adhered to the guidelines for protecting newsgathering. “Seizing a journalist’s records sends a terrible message to the public and should never be considered except as the last resort in a truly essential investigation…These rules protect the public’s interest in allowing journalists to report on what’s happening inside the government without fear of being investigated,” Brown said in a statement issued after The New York Times and other outlets published stories on the seizure of Watkins’ records.
Learn more about the Reporters Committee’s work with media organizations and the Justice Department to strengthen the guidelines here.