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 Justice’s 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 Manning’s 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 Iran’s 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, Holder’s DOJ renewed the subpoena against Risen. Soon after, the government anticipated and began arguing against Risen’s attempt to quash the subpoena on the grounds of his “reporter’s privilege.” In an argument filed in May 2011, the DOJ wrote, “…there exists neither a First Amendment nor a common law reporter’s privilege that shields a reporter from his obligation to testify, even if the reporter’s testimony reveals confidential sources and information.”
The government was still making that argument in the spring of 2013, when Holder’s pattern of involving journalists in leak investigations took center stage in the national media.
On May 10, the DOJ sent a letter to the Associated Press saying that more than a year earlier, phone records had been collected from at least 20 lines belonging to the organization and its journalists. The AP responded with a strongly worded letter arguing there could be “no possible justification for such an overbroad collection of the telephone communications” and claiming the action was “a serious interference with AP’s constitutional rights to gather and report the news.”
Holder claims to have recused himself from this case and not signed the order that authorized the collection of the phone records. But he defended the actions of his department, saying he was confident appropriate regulations were followed.
Just a few days later came the revelation that the government had named Fox News’ Rosen as “an aider and abettor and/or co-conspirator” as part of their effort to indict Stephen Kim, an analyst contracted by the State Department, under the Espionage Act. Holder himself signed off on that decision—it’s the one he publicly regretted last month.
At the time, the government met a fresh uproar from critics in the press and elsewhere. Writing at the American Civil Liberties Union, legislative counsel Gabe Rottman explains, “Applying [the Espionage Act] to reporters engaged in newsgathering, makes every media inquiry designed to elicit the disclosure of classified information a potential criminal act.” Kim was later convicted, but Rosen was never indicted. DOJ officials say they never intended to charge him.
In the fallout from the AP and Rosen revelations, Holder undertook a review of the DOJ’s “News Media Policies,” eventually rewriting agency guidelines for seeking evidence from reporters. He emphasized that it should only be done as a last resort and explicitly acknowledged an interest in “safeguarding the essential role of a free press in fostering government accountability and an open society.”
Holder’s new guidelines could be seen as a concrete attempt to slow his agency’s march toward ever more aggressive investigations of media leaks. In fact, James Risen’s lawyers even argued that the new guidelines supported their own view of reporter’s privilege. They asked a judge to throw out the DOJ’s subpoena request because it now apparently conflicted with the DOJ’s stated policy.
But when given a chance to put their new theory into practice, the DOJ lawyers instead maintained course. They did not withdraw the subpoena request against Risen. “They like to say they respect reporter’s privilege in cases where they don’t need it,” said Trevor Timm, of the Freedom of the Press Foundation, in a phone interview. “And they would much rather these rules be guidelines that they can break whenever they want, rather than rules or laws that are upheld by judges.”
In June, the Supreme Court rejected Risen’s final appeal of the subpoena. He will now either testify or be held in contempt of court when the Sterling case goes to trial in January.
For Timm, that state of affairs is enough to undermine Holder’s recent conciliatory tone when it comes to leak investigations. “I think he’s now in a position where he’s looking back at his legacy and kind of realizing what he did and maybe trying to kind of make up for that,” says Timm. “But as far as his actions go, it’s too little, too late. If he really regretted anything involving Risen he’s welcome to just drop the subpoena right now.”
There are also the outstanding matters of Wikileaks and, of course, Edward Snowden. Manning was sentenced in 2013 to 35 years in prison for leaking thousands of diplomatic cables and other classified information to Wikileaks, but a grand jury appears to still be deliberating over whether to bring charges against the site and its founder, Julian Assange.
And Snowden is in exile avoiding multiple charges under the Espionage Act for revealing secrets of the National Security Agency’s mass surveillance to journalists Glenn Greenwald and Laura Poitras. One unlikely but inarguable sign that Holder is serious about changing his legacy would be if Snowden were to come home without ending up in prison.