Attorney General Holder's report to President adopts stronger protection for news media

Attorney General Eric Holder today submitted a 7-page report to President Obama listing recommendations for revisions to guidelines on subpoenas to the news media. The report follows recent news of the subpoena of media phone records and a search warrant for a reporter's email account in the Justice Department’s pursuit of leakers of classified material.

The report, made public Friday afternoon, strengthens protections for journalists and calls for more direct oversight by the Attorney General himself when investigations of leakers involve journalists’ constitutionally protected work materials.

“The Department of Justice is firmly committed to ensuring our nation’s security, and protecting the American people, while at the same time safeguarding the freedom of the press,” Holder said today in statement. “These revised guidelines will help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures. While these reforms will make a meaningful difference, there are additional protections that only Congress can provide. For that reason, we continue to support the passage of media shield legislation.”

Holder held seven meetings with approximately 30 news media organizations, media industry associations, academic experts and First Amendment groups, including The Reporters Committee for Freedom of the Press, before filing the report.

The first of the report’s 10 specific recommendations calls for a reversal of the Justice Department’s current policy to notify the news media about subpoenas only if the assistant attorney general determines that the advance notice would not pose a threat to the investigation.

The report reverses that presumption and recommends that the matter be overseen by the higher ranking Attorney General and that the news media must always be given advance notice of a subpoena. Only if the Attorney General and a committee of senior Justice Department officials determine that advance notice would pose a “clear and substantial” threat to the investigation, grave harm to national security and death or serious bodily harm can the department delay notifying the affected media organizations.

“Presumption will ensure notice in all but the most exceptional cases,” the report stated.

In May, The Associated Press announced that the Justice Department collected records for 20 phone lines used by editors and reporters, most of whom were involved in a report about a CIA-thwarted terrorist plot in Yemen that contradicted previous statements by the Obama Administration denying such an attempt. Investigators did not notify the wire service about the subpoena and only notified the AP’s attorneys after the records were collected.

Days after the Association Press story broke, it also came to light that the Justice Department said that there was "probable cause" to consider Fox News reporter James Rosen a “co-conspirator” with State Department employee Stephen Kim, who is accused of leaking secrets to Rosen. That designation allowed the department to be free from the limits on search warrants to the news media found in the Privacy Protection Act, and allowed them to search his Gmail account.

The report states that the Justice Department will use the “suspect exception” only if the journalist is under criminal investigation for activities “not connected to ordinary newsgathering activities.”

The report also recommends the formation of a News Media Review Committee made up of senior Justice Department officials who will advocate for the media’s First Amendment rights and advise the Attorney General and his deputy when government attorneys seek media-related records in its pursuit of leakers.

“This committee will ensure that senior Department officials with relevant expertise and experience, and who are neither directly involved nor play a supervisory role in the investigations involved, are engaged in the considerations of the use of investigative tools that involve members of the news media,” the report stated.

The report also calls for more action from the intelligence community to pursue and punish its own leakers internally such as taking away clearances before pursuing criminal charges.

Related Reporters Committee resources:

· Brief: Media coalition letter to the Department of Justice regarding AP subpoena

· NM&L: Number of states with shield law climbs to 40

· Dig.J.Leg.Gd.: The limits of promising confidentiality