A Report on Attorney General Nominee Jeff Sessions on Issues that Affect the News Media

This week, Sen. Jeff Sessions (R-Ala.) will appear before the Senate Judiciary Committee, of which he is currently a member, for his confirmation hearing as President-elect Donald Trump’s Attorney General.  The two-day hearing will be held on Jan. 10–11, in advance of Trump’s inauguration.  Sessions, who has been a U.S. Senator since 1997, was formerly the Attorney General of Alabama, U.S. Attorney for the Southern District of Alabama, and Assistant U.S. Attorney for the Southern District of Alabama.

As a senator, Sessions has taken positions on a number of issues affecting journalists and media organizations.  He has opposed a federal reporter’s shield law and reforms to the Freedom of Information Act (FOIA), and supported surveillance policies that threaten confidential reporter-source relationships. On the other hand, he supported a bill that made it harder for libel plaintiffs to enforce judgments in the U.S. from foreign countries that don’t offer sufficient speech protections.

Reporter’s Privilege and a Federal Shield Law

Congress has grappled with but never ultimately passed a federal reporter’s shield law several times since 2005.  During that time, Sessions has made his opposition to such legislation known both through public statements and attempts to weaken provisions of proposed bills.

Originally introduced in the Senate by Sen. Richard Lugar, R-Ind., in 2005, The Free Flow of Information Act was intended to protect journalists’ confidential sources and encourage the dissemination of information to the public from sources who could hold the government accountable.  Current Vice President-Elect and then-Rep. Mike Pence, R-Ind., co-sponsored the bill in the House, saying that it would help hold the government accountable to the public.  The bill would have created a qualified reporter’s privilege, and whether a journalist could invoke that privilege would depend upon “whether the litigant’s demand for information arises in a civil, criminal, or other context, and whether it relates to an investigation or case implicating national security or classified material.”

Starting with a 2007 Judiciary Committee meeting and in each subsequent session in which the bill was considered through 2013, Sessions expressed staunch disapproval.  Even after the bill was modified in 2009 after discussions with federal law enforcement and representatives of the intelligence and defense communities, Sessions said the bill “protects those who use the media to illegally expose America’s national security secrets . . . by creating a federal court privilege that can prevent the enforcement of government subpoenas aimed at finding the leakers of confidential information.”  He stated: “It’s not just a protection for journalists, but a shield for those who break federal law and put Americans’ lives at risk.”

The version of the bill being considered by the Senate in 2007 included exceptions for national security matters.  For instance, the legislation would have “allowed a court to compel the disclosure of confidential-source information where disclosure would assist in preventing or mitigating an act of terrorism or acts that are reasonably likely to cause significant and articulable harm to national security.”  In cases not involving a leak of “properly classified information,” the bill would have permitted the court to “compel the disclosure of confidential-source information in order to identify the perpetrator of an act of terrorism or acts that have caused, or are reasonably likely to cause, significant and articulable harm to national security.” Sessions viewed these exceptions as insufficient.  He indicated that, in his view, the judiciary is not the appropriate branch to classify information or to ascertain whether something was “properly classified.”  “The current system is not broken in my view,” Sessions said in 2007.

That same year, Sessions also questioned whether journalists needed a federal reporter’s privilege, stating that he did not “think the problem is . . . as great as people believe, and the solution that [was] proposed will cause more problems.”   Sessions stated:  “Really, the matter is about the leaker. This presumptively is a crime.  The information that the leaker has provided to a reporter is a crime that’s supposed to be enforced by the Department of Justice.”

Between 2005 and 2013 — when the Judiciary Committee voted to send the bill to the Senate floor — new exceptions and exemptions were inserted into the bill, prompting Senator Schumer to say in 2013 that it favored national security and law enforcement interests over the interests of journalists.  Sessions, however, still refused to support the bill, stating “I’m not in a big rush to pass a bad piece of legislation.”  He introduced several amendments to broaden exceptions for information pertaining to acts of terrorism or national security.  “We need to make it clear, so that a reporter says ‘no, that information is clearly not the type of information I can take and publish and protect you, who are leaking in a criminal act secured information. . . .  That’s the way you create some kind of clarity in our legislation.  We’re not attempting to prosecute a journalist.  We’re attempting to tell the journalist precisely what . . . he can tell a potential informant, leaker, spy, traitor . . . a cold-blooded traitor he could be dealing with[,]” Sessions said.  Another one of Sessions’ amendments proposed exempting leaked information from grand juries from the bill’s protections.  All of these amendments failed to pass the Committee.

Libel Tourism and the SPEECH Act

In 2010, Sessions co-sponsored a federal law intended to combat “libel tourism” — a practice whereby libel plaintiffs sue a U.S.-based defendant in a country where speech protections are weak or nonexistent, then seek to have the judgment against the defendant enforced in the U.S.  The SPEECH Act (the Securing the Protection of our Enduring and Established Constitutional Heritage Act) was unanimously passed in August 2010.

The federal legislation followed the passage of a similar New York state law, which was motivated by a 2005 lawsuit over a book on terrorism financing.  After author Rachel Ehrenfeld wrote Funding Evil, a book published in the United States, a Saudi Arabian businessman sued Ehrenfeld for defamation in a British court, merely because 23 copies of it were purchased online and sent to England.  She refused to respond to the suit in England, and a default judgment was entered against her.

The SPEECH Act prevents enforcement of foreign libel judgments unless “the defamation law applied in the foreign court’s adjudication provide[s] at least as much protection for freedom of speech and press in that case as would be provided by the First Amendment to the Constitution.”

Transparency and the Freedom of Information Act

Throughout his tenure in the Senate, Sessions repeatedly opposed FOIA reform and other transparency legislation.

In 2008, he thwarted a bill that would have amended the Presidential Records Act to ensure greater public access to presidential records.  The measure, aimed at overturning an Executive Order issued by President George W. Bush, would have limited the restricted access to presidential records and allowed greater public inspection of the records.  At the time, the Sunlight Foundation, a transparency organization, stated that in placing a hold on the bill, Sessions and the other senators who opposed it were “doing the bidding of a White House with a Nixonian penchant for secrecy and leaving the rest of us in the dark.”  Sessions did not publicly offer an explanation for his opposition to the bill.

On two other occasions, Sessions attempted to limit reforms to FOIA.  In 2014, he put a hold on the FOIA Oversight and Implementation Act of 2014.  Sessions said that he was concerned about reforms aimed at Exemption 5 of FOIA, which exempts “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”  Exemption 5 has been interpreted to shield from disclosure attorney-client privileged records as well as records falling within the so-called “deliberate process” privilege.  The proposed amendment to FOIA would have permitted the release of records subject to Exemption 5 after a period of 25 years.

The next year, he again placed a hold on similar legislation. The Senate Judiciary Committee’s report on the FOIA Improvement Act of 2015 quoted Sessions saying that the “[l]egislation could chill government lawyers from offering candid advice and invite criminal defendants and their attorneys to re-open and re-litigate long-resolved cases” and that he was “concerned that ‘full and frank communication’ may be chilled by the knowledge that all such communications could become a matter of public record within a relatively short time-period.”  In his comments, Sessions further stated that he had been “informed by” the Department of Justice that the “25-year sunset provision on Exemption 5” would result in FOIA being utilized as “an alternative discovery tool in attempts to re-open cold cases.”  In an email obtained by reporter Jason Leopold, formerly of VICE News, it was made “clear that [his] opposition was partially the result of DOJ’s lobbying,” which opposed the reforms.  Emails from Sessions’ deputy chief counsel indicate that Sessions was talking with the DOJ’s Office of Legislative Affairs to see if the agency would be willing to support an extension of the 25-year sunset to 40 years.

Finally, in March 2016, Sessions removed his hold on the bill.  In an interview with The Hill, he indicated that he was “okay with it” after he learned that some of his requested changes, which he did not detail, had been accepted. With Sessions’ hold removed, the FOIA reform bill passed unanimously.

Based on Sessions’ track record, many press freedom and transparency advocates have expressed fear that, as Attorney General, he will have a negative effect on FOIA policies.  As Kevin Goldberg, counsel for the American Society of News Editors, told ThinkProgress, “Now more than ever, as people are questioning journalists’ writing, source materials in the form of a government document become more crucial in stating the case for the truth.”

While Sessions has not yet indicated how he may handle any FOIA or transparency-based issues as Attorney General, some commentators have pointed out that any anti-disclosure policy he issues may not have a significant effect. As ThinkProgress reported, following then-Attorney General John Ashcroft’s restrictive memo on FOIA in 2001, only five of thirty-three surveyed agencies noted drastic changes to their policies. 

Surveillance and Encryption

For the entirety of Sessions’ almost two-decade career in the Senate, he has been an advocate of increased government surveillance authority.  He blocked efforts to reform surveillance practices at the National Security Agency (NSA) by opposing the Foreign Intelligence Surveillance Act (FISA) of 2012 and changes to the USA Freedom Act in 2015, which would have imposed limitations on NSA surveillance after former government contractor Edward Snowden unveiled the breadth of the NSA’s spying powers.  Sessions has consistently promoted expansion of the government’s surveillance capabilities: “I am frustrated, forgive me, that we are so timid about allowing the full historical surveillance capabilities our Nation is used to having at this time when we have unique threats from terrorists who have proven they have the ability to inflict thousands of deaths on Americans[,]” he said during a 2008 floor statement about FISA reforms.

In an op-ed he wrote for National Review in 2015, Sessions explained the need, in his view, for the government to collect Americans’ telephone records in bulk under Section 215 of the USA PATRIOT Act.  He justified the bulk collection by stating that information “can be accessed by only a limited number of trained intelligence professionals and only after the government has demonstrated to the court that there is a reasonable, articulable suspicion that a number or identifier is associated with a specific foreign-terrorist organization.”  The USA Freedom Act, which endeavored to end the government’s bulk collection of telephone communications, put an end to certain surveillance practices permitted under the PATRIOT Act.  It was widely supported by Republicans in Congress, passed both Houses, and was approved by NSA Director Michael Rogers. Sessions, however, opposed it.

Sessions also supported the FBI’s attempted demand to make Apple write code to defeat the encryption on an iPhone used in the 2015 San Bernardino terrorist attack.  He has also introduced amendments to the Electronic Communications Privacy Act (ECPA) that would have required technology companies, such as Yahoo or Google, for example, to release private and sensitive information to law enforcement without a warrant in the event of an “emergency.”  The amendment did not pass.  Senator Sessions has also made clear that he opposes the use of encryption, which, as a result of the threat to the free flow of information posed by government surveillance, many journalists now rely on to communicate confidentially with sources.