Eric Holder’s lasting damage to press freedom

The fact that outgoing Attorney General Eric Holder has prosecuted more people under the Espionage Act than all previous attorneys general combined is an inescapable legacy of his time in office. All of those cases were brought against government workers or contractors accused of leaking classified information to the media, which led Trevor Timm, co-founder of the Freedom of the Press Foundation, to call Holder the worst Attorney General for the press in a generation.

Recently, Holder has seemed intent on escaping that title. Several weeks after announcing his plans to step down, he said during an interview at the Washington Ideas Forum that his biggest mistake in office was naming Fox News reporter James Rosen as a co-conspirator to commit espionage in one of the leak investigations.

And in the latter half of his time in office, Holder has expressed support for a media shield law and rewritten the Department of Justices guidelines to tighten rules for subpoenaing reporters during criminal investigations.

But the Obama administration has undoubtedly tilted the legal landscape against leakers and national security reporters. If Holder wants to change that, he will have to unpave a long road of specific policies laid down by the DOJ during his tenure, not simply express remorse and draw up broad new guidelines.

In 2010, Thomas Drake, Shamai Leibowitz, Chelsea Manning, Stephen Kim, and Jeffrey Sterling were all charged under the Espionage Act. Taken as a block, those prosecutions set the precedent that the government could use a law written in 1917 with double agents in mind as a weapon in the fight against modern leakers of national security information.

With the Espionage Act, Holder chose a tool that could potentially be very dangerous to journalists, because it is vague enough to criminalize all kinds of information dissemination. Writing specifically about Mannings disclosures to Wikileaks, Benjamin Wittes, editor in chief of the Lawfare blog, notes that by its terms, it criminalizes not merely the disclosure of national defense information by organizations such as Wikileaks, but also the reporting on that information by countless news organizations.

That was not a problem in several of the early cases. Leibowitz quickly pled guilty and was sentenced to 20 months in prison. The charges against Drake fell apart in 2011, and he pled guilty to a misdemeanor. In 2012, John Kiriakou, a CIA officer, was charged under the Espionage Act but convicted under a different law and sentenced to 30 months in prison. The investigations into Sterling, Kim, and Manning, however, have dragged on much longer and carry implications for press freedoms beyond their membership in the group of Espionage Act cases.

The investigation of CIA officer Jeffrey Sterling is based on a chapter in a 2006 book by New York Times reporter James Risen, in which he writes about American attempts to undermine Irans nuclear program. Risen was first subpoenaed to testify against his source for the chapter, suspected to be Sterling, under the Bush administration, but he fought the order until it expired in 2009.

In 2010, however, Holders DOJ renewed the subpoena against Risen. Soon after, the government anticipated and began arguing against Risens attempt to quash the subpoena on the grounds of his reporters privilege. In an argument filed in May 2011, the DOJ wrote, there exists neither a First Amendment nor a common law reporters privilege that shields a reporter from his obligation to testify, even if the reporters testimony reveals confidential sources and information.

The government was still making that argument in the spring of 2013, when Holders pattern of involving journalists in leak investigations took center stage in the national media.

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Eric Holder’s lasting damage to press freedom