Project Veritas is at the vortex of two cases that threaten the First Amendment

James O’Keefe of Project Veritas. Photo (cc) 2020 by Gage Skidmore.

A pair of legal battles involving Project Veritas, a right-wing activist group known for recording its victims on hidden camera and then deceptively editing what they said, have raised a couple of dicey First Amendment issues.

The first involves FBI raids against James O’Keefe, the founder of Project Veritas, as well as against his associates. The raids were connected to the alleged theft of a diary kept by President Biden’s daughter Ashley, even though Veritas did not publish anything from the diary and ended up turning it over to law enforcement.

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As Josh Gerstein writes in Politico, the raids “are prompting alarm from some First Amendment advocates, who contend that prosecutors appear to have run roughshod over Justice Department media policies and a federal law protecting journalists.” He quotes longtime First Amendment advocate Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press, as saying:

This is just beyond belief. I’m not a big fan of Project Veritas, but this is just over the top. I hope they get a serious reprimand from the court because I think this is just wrong.

Maybe, maybe not. Project Veritas is entitled to the protections afforded to any journalistic organization, no matter how sleazy. The question, as Gerstein observes, is whether Veritas did anything illegal in obtaining the diary.

For instance, Daniel Ellsberg, Chelsea Manning and Edward Snowden all broke the law in obtaining secret documents, and they all paid a high price for their actions. The news organizations that published those documents, though, were not prosecuted because there was no evidence they had participated in those crimes. (Julian Assange of Wikileaks is a special case. Source or publisher? Passive recipient or active participant in the theft of classified information? I’ll leave those questions aside for today.)

What we don’t know about the Project Veritas case is whether the government is claiming that O’Keefe and his crew were participants in the theft of the diary. If that’s what they’re charged with, then the First Amendment doesn’t come into play — and I suspect that’s what we’re going to find out. Absent such a claim, though, the actions of the FBI would indeed represent a grave threat to freedom of the press.

The second, and more serious, case involves a libel suit that Project Veritas filed against The New York Times. In a proceeding not directly related to the libel claim, Veritas argued that documents the Times published violated the group’s right to attorney-client privilege. That led to an extraordinary order, reported by Michael D. Grynbaum in the Times:

On Thursday, the trial court judge, Charles D. Wood of State Supreme Court in Westchester County, ordered that The Times “immediately sequester, protect and refrain” from disseminating any of the materials prepared by the Project Veritas lawyer. Furthermore, Justice Wood instructed The Times to “cease further efforts to solicit or acquire” those materials, effectively preventing the newspaper from reporting on the matter.

This is censorship — prior restraint. I’m sure Judge Wood has a law degree, but anyone who’s taken an undergraduate First Amendment course knows this is unconstitutional. Under the Near v. Minnesota standard, the government may not engage in prior restraint except in a few narrowly drawn instances: incitement to violence, serious breaches of national security and obscenity. By contrast, the reasons for restraining the Times in the Project Veritas case are trivial. Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, put it this way:

This is the first prior restraint entered against the New York Times since the Pentagon Papers, and it is an outrageous affront to the First Amendment.

Prior restraints — which are orders not to publish — are among the most serious threats to press freedom. The trial court should have never entered this order. If it doesn’t immediately vacate the prior restraint, an appellate court must step in and do so.

Two cases, two very different sets of facts. As I said, we’ll have to wait and see on the first case, which might prove to be no big deal. The second case, though, strikes me as a reflection of the low esteem in which the media are held these days. A protection that has allowed news organizations to publish secret government documents as long as they don’t put the country at risk is now being flouted by a state judge for the flimsiest of reasons.

It’s time for the feds to stop hassling and spying on the press

FBI headquarters. Photo (cc) 2008 by zaimoku_woodpile.

Previously published at GBH News.

It was a move reminiscent of the post-9/11 Patriot Act, which allowed federal investigators to spy on the reading habits of library and bookstore customers in the name of fighting terrorism.

Last week we learned that the FBI had subpoenaed USA Today in pursuit of Internet Protocol addresses and other data. The goal was to help the agency figure out the identities of people who had read a story last February about a Florida shootout in which two FBI agents were killed and three were wounded. The subpoena specifically cited a 35-minute time frame on the day that the shootings took place.

Fortunately, USA Today’s corporate owner, Gannett Co., the nation’s largest newspaper chain, took a principled stand and fought the subpoena. On Saturday, the FBI backed down. There’s already little enough privacy on the internet without having to worry about the possibility that government officials will be looking over our shoulders as we’re reading.

We are in the midst of a systematic assault on the media’s role in holding the powerful to account. And it’s long past time for our elected officials to do something about it by passing legislation rather than relying on assurances by President Joe Biden that he’s ending these abuses. After all, Biden’s assurances can be undone by the next president with the flick of a pen. We need something stronger and more stable.

Barely a month ago I wrote about the revelation that the Trump Justice Department had spied on three Washington Post reporters’ phone records. I observed that Trump’s actions were in line with a long string of presidential attacks on the media, from Richard Nixon to George W. Bush to Barack Obama.

Since then, the revelations have come at a dizzying pace. In addition to the USA Today subpoena, which strikes me as especially egregious since it targets readers rather than journalists, there have been at least two other noteworthy instances of abuse:

• In late May, CNN reported that the Trump administration had secretly obtained 2017 email and phone records of Barbara Starr, a longtime reporter for the network. The period in question was June 1 to July 31, 2017.

• In a particularly noxious abuse of the government’s power, The New York Times reported several days ago that the Justice Department had subpoenaed Google for the email records of four Times reporters — and that, though the inquiry had begun under former President Donald Trump, it continued under Biden. As recently as March, the Justice Department obtained a gag order prohibiting Google from informing the Times. That order was later amended so that a few top officials at the Times could be told, but not executive editor Dean Baquet.

“It is urgent that we hear from the attorney general about all three Trump-era records seizures, including the purported reasoning behind them and the rationale for not notifying the journalists in advance,” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, in a statement released last week. “The goal must be to ensure that such abuses never occur again.”

Compounding the problem is the widely misunderstood belief that government officials are violating the First Amendment. For instance, on CNN’s “Reliable Sources” this past Sunday, Adam Goldman, one of the four Times reporters targeted in the Google probe, said, “The U.S. attorney’s office in D.C. has a history of trampling on the First Amendment, so that’s why I wasn’t surprised. They treat the media, they treat newspapers like drug gangs.”

In fact, over the past century the Supreme Court has interpreted the First Amendment in such a way that the protections for news gathering are exceedingly weak.

Protections for publication and broadcast are strong, which is why the press has been able to report on secret stolen documents — from the Pentagon Papers to the Snowden files — with few concerns about facing prosecution.

But the court has ruled that journalists have no constitutional right to protect their anonymous sources. And with regard to the current string of spying revelations, the court has held repeatedly that journalists enjoy no special rights that would not be available to ordinary citizens.

President Biden recently pledged to end the practice of seizing reporters’ records, saying the practice is “simply, simply wrong.” Some observers questioned whether he actually meant it, since he’d be breaking not just with Trump’s abuses but with longstanding practice. That, in turn, led press secretary Jen Psaki to assure journalists that Biden planned to follow through on his pledge.

But what a president does, a future president can undo. To guarantee that the press will be able to perform its watchdog role, we need a federal shield law so that reporters won’t be compelled to reveal their confidential sources. Such protections — either by law or by court decision — are already in place in 49 states, with the sole exception being Wyoming.

We also need legislation that prevents the government from secretly spying on journalists’ online activities — and on readers’ activities as well.

No doubt opponents will insist that the government needs to be able to spy in order to keep us safe. But the Post, CNN and Times cases appear to involve the Trump administration’s politically motivated attempts to learn more about the origins of the Russia probe, including the activities of former FBI Director James Comey. The USA Today case did involve a much more serious matter. But after dropping its demands, the FBI told the BBC that “intervening investigative developments” made the information unnecessary.

Which is nearly always the case. Rarely does the government’s desire to interfere with the press’ role involve a situation that’s literally a matter of life or death. And the law can accommodate those rare instances.

In general, though, the government should go about its business without compromising the independence or freedom of the press.

A Washington Post correction adds to confusion over Rudy Giuliani and the FBI

Rudy Giuliani. Photo (cc) 2019 by Gage Skidmore

When you have to publish a correction, be forthcoming about it. The Washington Post failed to do that over the weekend, thus compounding the harm it had done to Donald Trump adviser Rudy Giuliani. Here is the Post’s correction, published on Saturday:

An earlier version of this story, published Thursday, incorrectly reported that One America News was warned by the FBI that it was the target of a Russian influence operation. That version also said the FBI had provided a similar warning to Rudolph W. Giuliani, which he has since disputed. This version has been corrected to remove assertions that OAN and Giuliani received the warnings.

The correction makes it appear that the Post was backing down solely on Giuliani’s say-so. That led to a tweet from Caroline Orr Bueno in which she asked: “Why retract it instead of just adding in a statement saying Giuliani disputes it?” To which I responded: “Marty Baron has left the building,” referring to the recent retirement of the Post’s executive editor.

But it turned out not to be so simple. Because The New York Times and NBC News had also run stories claiming that Giuliani had been warned, and they published corrections as well. Tom Jones of Poynter rounds them up. First, the Times:

An earlier version of this article misstated whether Rudolph W. Giuliani received a formal warning from the F.B.I. about Russian disinformation. Mr. Giuliani did not receive such a so-called defensive briefing.

Not much explanation there, but at least the Times isn’t attributing the reason for its correction to Giuliani. The clearest is from NBC News:

An earlier version of this article included an incorrect report that Rudolph Giuliani had received a defensive briefing from the FBI in 2019 warning him that he was being targeted by a Russian influence operation. The report was based on a source familiar with the matter, but a second source now says the briefing was only prepared for Giuliani and not delivered to him, in part over concerns it might complicate the criminal investigation of Giuliani. As a result, the premise and headline of the article below have been changed to reflect the corrected information.

That’s how you do a correction: explain exactly went wrong. Of the three, the Post’s is the worst, since the wording makes it appear as though the editors were responding solely to a complaint by Giuliani. The Times’ is OK, but its lack of clarity and falls into the “mistakes were made” category. So kudos to NBC News for doing it the right way.

Giuliani remains in a heap of trouble. His apartment and office were searched by the FBI last week as part of what appears to be a criminal investigation into his activities in Ukraine. There was no need for news organizations to pump it up with information that was unverified and, as it turns out, wrong.

And, as Oliver Darcy of CNN observes: “All the original reports were attributed to anonymous sources.”

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Bad news for Hillary Clinton: ‘Carlos Danger’ is back

Anthony Weiner during his New York mayoral campaign. Photo (cc) by Azi Paybarah.
Anthony Weiner during his New York mayoral campaign. Photo (cc) by Azi Paybarah.

At a time when no one knows anything about the latest Hillary Clinton email story beyond the cryptic letter that FBI Director James Comey sent to Congress last week, I decided that the best way to research this piece was to pour a glass of wine, grab some Halloween candy, and watch Weiner, a documentary released a few months ago.

I didn’t learn anything about the emails. But I did gain some insight, at least superficially, into the marriage between disgraced former congressman Anthony Weiner and Huma Abedin, the top Clinton aide whose emails were reportedly found on her estranged husband’s computer.

Read the rest at WGBHNews.org.

The state of the Clinton email investigation

Based on what we know so far, FBI Director James Comey’s bombshell letter is likely to lead to very little. Having upended the election campaign with just days to go, Comey owes it to the public to tell us exactly what the FBI knows as soon as possible.

Here’s what we seem to know: Clinton and her top aide, Huma Abedin, exchanged emails (now, there’s a big surprise, eh?). Some of those ended up on devices used by Abedin’s estranged husband, Anthony Weiner, because they shared a computer.

It is already well established that Clinton used a private email account for her official business, that she showed bad judgment in doing so, but that she did not commit a crime. Somewhere between many and all of the newly discovered emails may be duplicates that the FBI has already looked at.

There is nothing new here—just more evidence of what a mistake Clinton made in not using her State Department email account. For one thing, sensitive emails can end up in the hands of someone like Weiner.

Update: Jane Mayer of the New Yorker weighs in with essential reading on Comey’s decision to go public.

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A polite debate over Apple, the FBI, and encryption

Previously published at WGBHNews.org.

I had expected fireworks—or at least strong disagreements—when Internet privacy advocate Jonathan Zittrain and former CIA director John Deutsch debated the impasse between Apple and the FBI over a locked iPhone used by one of the San Bernardino shooters.

Instead, the two men offered nuance and a rough if imperfect consensus over how much access we should have to technologies that allow us to encrypt our personal data in ways that place it beyond the government’s reach.

“Many other paths to data are available. We are exuding data all over the place,” said Zittrain, a professor at Harvard Law School and the author of The Future of the Internet—And How to Stop It. “The FBI has chosen this case … in large part, I think, because there is so little privacy interest on the other side.”

Deutsch, an emeritus professor at MIT, sought to draw a distinction between law enforcement and terrorism investigations such as the San Bernardino case. Authorities say they need to know what was on the phone used by the late Syed Rizwan Farook because it might reveal the identities of accomplices who are planning future attacks.

“There’s a big difference between law enforcement and national security,” Deutsch said. Law enforcement, he explained, is about “catching bad people,” whereas the aim of national security is “to avoid a catastrophe.” There is a public interest in requiring cooperation from companies such as Apple in a national-security investigation, he said, with the courts setting boundaries for when such cooperation should be compelled.

If that sounds like disagreement, it was so polite and mildly worded as to create barely a stir. Indeed, people in the packed hall at Harvard’s Kennedy School on Monday evening—most of them Apple partisans, I suspect—seemed to appreciate a discussion that focused more on the fine points of technology and the law rather than on broad proclamations about Internet freedom versus the threat of terrorism.

Then, too, technology is changing so rapidly that the points raised during the debate may soon be obsolete.

Apple has been ordered to write software that will enable government investigators to gain access to Farook’s data; the company has filed an appeal seeking to overturn that order. But as Zittrain noted, Apple executives say they will soon offer encryption software to consumers that will make it impossible for anyone—even Apple itself—to break in. Such software, Zittrain added, is already available from various sources, which means that even if it were legally banned, it could still be used.

And that changes the nature of what’s at stake. As the San Bernardino case has played out, I’ve been more sympathetic to the government than to Apple. Why shouldn’t a corporation be required to comply with a court order to provide information in a terrorism investigation? And if it’s extraordinary to demand that Apple to write software so that the phone can be accessed, what of it? That’s simply a consequence of Apple’s engineering decisions.

As Deutsch put it: “That’s not really the essential point. It’s a minor part of the issue.”

On the other hand, I’m as uncomfortable as anyone with the idea that Apple and other companies could be forbidden to offer encryption so strong that even they would lack the means to bypass it. Requiring companies to build in a so-called back door would open the way not just to legitimate investigations but to privacy breaches and fraud, and would hand yet another tool to authoritarian governments seeking to repress dissent.

Zittrain and Deutsch talked about what role Congress and the courts might play in finding the proper balance between privacy and security. I asked them whether those institutions could have any role at all in a world in which no one but the end user would be able to bypass the encryption settings.

Zittrain responded that we have never lived in an era when every bit of data is accessible to a government investigator with a warrant. Even so, he said, there will continue to be vast amounts of personal data available to investigators despite the existence of strong encryption. “There’s a whole constellation of data points out there,” he said, calling it “an embarrassment of riches.”

I found Deutsch’s response more intriguing, reflecting as it did his both cloak-and-dagger days at the CIA and his long career in science.

“I don’t believe that phones irrevocably go dark,” he said, explaining that he believes Apple and other companies will retain the ability to unlock encrypted devices regardless of what they publicly proclaim. He also offered what he called “a suspicious paranoid point: all of these phones are made in China.” Would the Chinese government really allow the manufacture of technology that it couldn’t somehow access?

With technology changing so rapidly, Zittrain said, the current dispute between Apple and the FBI is “a bellwether rather than the case of the century.”

This time, in other words, Apple says that it won’t. Next time, it may say that it can’t.

FBI wants to know if journalists have been naughty or nice

I’ll be on “NightSide with Dan Rea” at 8 p.m. on WBZ Radio (AM 1030) to talk about this article in The Washington Times revealing an FBI plan to rate news stories about the agency as “positive,” “negative” or “neutral.” Reporter Jim McElhatton interviewed me for the story. And here is the FBI document (pdf) he unearthed.

Update, Aug. 8. The FBI backs off.

Naming names: Did the Globe make the right call?

redactedPreviously published at WGBH News.

We’re going to be hearing a lot about The Boston Globe’s decision to publish the names of the FBI agent and State Police troopers who were involved in the Florida shooting death of Ibragim Todashev, the Tamerlan Tsarnaev associate suspected of taking part in a triple murder in Waltham.

The story, by Globe reporter Maria Sacchetti, reveals that FBI agent Aaron McFarlane is a former Oakland police officer with a troubling past. The article raises serious questions about how law enforcement handled the investigation of perhaps the single most important figure connected to the Boston Marathon bombing suspects. Here is some background to keep in mind as the discussion unfolds.

This past January, David Boeri of WBUR Radio (90.9 FM) reported on the FBI-State Police interrogation that ended in Todashev’s death. Here’s what Boeri had to say about the names of the agent and the two troopers:

In the course of our investigation, WBUR has learned the names of the law enforcement officers involved in the shooting. We are not releasing the names at the request of both the FBI and the Massachusetts State Police, which cited specific concerns for their safety.

In today’s Globe article, we learn that the FBI agent’s name is Aaron McFarlane, and that he “has previously been publicly identified in a blog about the Boston Marathon case.”

That prompted Boston magazine editor-in-chief Carly Carioli to tweet:

(And by the way, in March Boston published its own long investigation into the shooting. The article, by Susan Zalkind, was also the subject of a one-hour segment on public radio’s “This American Life.”)

Carioli’s tweet leads to a site called “The Boston Marathon Bombings: What Happened?”, which on May 3 revealed the names of McFarlane and the two Massachusetts troopers, Joel Gagne and Curtis Cinelli. (As best as I can tell, that’s the first time any of the three officers was named.) According to the site, the names and uncensored crime-scene photos were obtained from PDFs of public records using techniques that sound similar to what the Globe did. The Globe offers this description:

The Globe obtained their names by removing improperly created redactions from an electronic copy of Florida prosecutor Jeffrey L. Ashton’s report — which in March found the shooting of Todashev justified — and then verifying their identities through interviews and multiple government records. Those records include voting, birth, and pension documents.

On May 5, the same “What Happened?” website revealed some of the problems McFarlane had as a member of the Oakland Police Department that are at the heart of today’s Globe story.

I should note that though the “What Happened?” site appears to have broken some important stories, it also traffics in rather, uh, unusual rhetoric. For instance, here is a photo of Dzhokhar Tsarnaev, bloody and injured as he surrendered in Watertown, beneath the headline “2013: THE YEAR AMERICA BEGAN HUNTING DOWN AND SHOOTINGS[sic] IT’S [sic] OWN TEENAGERS. WHY?”

By all indications the Globe has been careful to do its own reporting — which it would in any case, but which is especially important when dealing with material like this.

Which brings us to the question I imagine we’ll be debating in the days to come: Should the Globe have released the names of McFarlane, Gagne and Cinelli? I’d like to hear arguments on both sides. But keep these three things in mind:

  • The official investigation into Todashev’s death had not been completed when Boeri was doing his reporting for WBUR in January. Since then the three have been cleared by investigators, and the matter is no longer pending.
  • Police officers are doing the public’s business, and we have a right to know as much information as possible about serious matters such as the Todashev shooting. Consider a much more routine example, reported by the Salem News, in which the Essex County district attorney’s office named officers involved in a fatal shooting in the course of disclosing the results of their investigation.
  • Because of the “What Happened?” report, the three names were, in fact, already out there. Whatever calculation Globe editors might have made if this had occurred 20 years ago, it is simply a reality that a mainstream news organization can no longer act as a gatekeeper to prevent the public from learning information that it can find out elsewhere. This change doesn’t call for lower standards, but it does call for different standards.

I realize I’m putting my thumb on the disclosure side of the scale. But I think withholding the names would have been a respectable decision as well. As Sacchetti writes today, “Even Florida, which often identifies such officers, declined to do so in this case, citing concerns for the investigators’ safety.”

At this early stage, I can be persuaded either way, and I’m curious to see and hear what others have to say.

Misplaced priorities at the Boston Police Dept.

Howard Zinn
Howard Zinn

Last October the Massachusetts chapter of the ACLU revealed that the Boston Police Department had been spying on left-wing activists such as the late Howard Zinn.

The police were working with the Boston Regional Intelligence Center (BRIC), a so-called fusion center through which the authorities could coordinate with the FBI and other agencies to find out who might be plotting a terrorist attack. Zinn, a peace activist, an elderly professor and World War II hero, was clearly someone to keep a close eye on.

Of course, we now know that at the same time the police were wasting their resources on Zinn, they were ignorant of what the FBI knew about Tamerlan Tsarnaev. Among those putting two and two together in the last few weeks were Michael Isikoff of NBC News;  Boston journalist Chris Faraone, who produced this for DigBoston; and Jamaica Plain Gazette editor John Ruch, who wrote an analysis.

Although it would be a stretch well beyond the facts to suggest that if the police hadn’t been watching left-wing and Occupy protesters they might have caught Tsarnaev, the BPD was certainly looking in all the wrong places. The police did a good and courageous job of reacting to the Boston Marathon bombings. The issue is how they spent their time and resources in trying to prevent a terrorist attack.

Spying on the antiwar left makes no more sense today than it did in the 1960s and ’70s. Police Commissioner Ed Davis needs to take a break from giving commencement speeches in order to answer a few questions.

And while I’m on the subject of questionable law-enforcement practices, I sure hope we find out what actually happened in Florida last week. Don’t you?

AP probe should be a wake-up call for journalists

Trevor TimmBy Trevor Timm

As part of a new leak investigation, the Justice Department has secretly obtained the call records for 20 phone lines owned by the Associated Press, which could put sources for as many as 100 reporters at risk. The AP called the move a “massive and unprecedented intrusion,” saying they “regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.”

We agree. It’s time to stop looking at all of these leak investigations and prosecutions as ancillary to press freedom; they are a direct attack on it. This should be an important wake-up call for journalists.

While this incident has brought the Justice Department’s crackdown on leakers to a new extreme, it’s important to remember, this storm has been brewing for a while now. In five years, the Obama administration has prosecuted more leakers under the Espionage Act than all other administrations combined, and virtually all these prosecutions have engulfed journalists in one way or another.

As part of this current investigation, we’ve known the FBI has been data-mining government officials’ phone and email records for months, looking for links to journalists on a systematic scale. The Washington Post reported in January, the FBI is using new, “sophisticated software to identify names, key words and phrases embedded in emails and other communications, including text messages, which could lead them to suspects.”

According to the Post, “The FBI also looks at officials’ phone records — who called whom, when, for how long.” Anytime the FBI found a government official has contact with the unknown number of “particular” journalists, FBI agents were “confronting” officials with this information.

A similar leak investigation to the one that has engulfed the AP is aimed at New York Times sources for its investigation into secret U.S. cyberattacks. The government refused to comment if the Justice Department has gone to similar extremes with The New York Times’ phone lines.

Regardless, as The New York Times reported on its front page in August of last year, these leak investigations are “casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings.” The Huffington Post recently interviewed several of the nation’s most prominent national security journalists, all of whom confirmed it’s a perilous time for journalists who are reporting on what the government considers secret.

The Justice Department does not deny this. When asked about the Obama administration’s crackdown on leakers last June, a senior Justice Department (DOJ) official told longtime national security reporter Shane Harris that the DOJ is “out for scalps.” Harris’ DOJ source also “made it clear that reporters who talked to sources about classified information were putting themselves at risk of prosecution.”

And it may be about to get worse.

In another leak case, New York Times reporter James Risen has been fighting a subpoena from Obama’s Justice Department for years. The Obama DOJ is after his sources for a chapter in his book “State of War.” (You can read the incredible chapter at issue, about a spectacularly bungled CIA mission that allegedly handed nuclear bomb blueprints to Iran, here.)

The Obama administration inherited the case from the Bush administration, and despite the fact that the district court judge sided with Risen during both the grand jury and trial, DOJ has continued to appeal the case. Last May, the DOJ argued before the Fourth Circuit that reporters’ privilege does not exist at all for national security reporters. Disturbingly, the Justice Department said that Risen protecting his sources was “analogous” to refusing to testify about receiving drugs from a confidential source.

The Fourth Circuit Appeals Court decision could come down any day now, and it will undoubtedly be the most important press freedom decision in a decade or more.

And while it has curiously receded from national headlines, the Justice Department also still has an active grand jury investigation open against WikiLeaks for publishing classified information. If such a prosecution succeeds, it will be open season on media organizations that publish stories that touch on information the government considers secret, putting virtually every national security journalist at risk of prosecution.

In fact, the House of Representatives held a hearing just last July in which multiple congressmen openly discussed throwing New York Times journalists in jail for publishing classified information about secret cyberattacks and CIA drone strikes. By staying quiet about the WikiLeaks grand jury, journalists only increase this risk.

The White House press secretary was quick to state that the administration is “not involved in decisions” in the AP investigation and heard about it from the media. White House officials are under investigation for this particular leak as well, so that’s no surprise. But one should not forget: the White House created this war-on-leaks monster. Congress has only encouraged its expansion, instead of investigating the wrongdoing that many of the leaks exposed.

And now, it’s out of control.

Trevor Timm is co-founder and executive director of the Freedom of the Press Foundation. Republished by permission.