My first instinct on hearing about the case of James Rosen was somewhat casual. Much too much so, in retrospect. Yes, Rosen was a pretty clueless reporter; yes, disclosure of a source in North Korea could have been extremely damaging to national security. Some kind of investigation was merited. But the move to issue a warrant to Rosen for possibly being a co-conspirator in leaking the information crossed a line. And it was crossed by Attorney General Eric Holder. Leakers are not journalists. That distinction got blurred.
Holder, in his defense, was pressured by the CIA and the Congress, which is why there’s been relatively little outrage there:
On December 3, 2009—just a few months before he approved the affidavit in the Fox case—Holder, FBI director Robert Mueller, and director of national intelligence Dennis Blair were hauled before a secret session of the Senate Intelligence Committee to explain why they weren’t punishing more leakers.
But it is the job of the AG to resist such pressure if the pursuit of the leak were to turn into near-prosecution of the press for doing its job. The good news is not that Holder is apparently experiencing regret – his excruciating remorse is expressed through Daniel Klaidman’s tiny violin here. It is that he is going to oversee new rules that will prohibit going near reporters’ records:
Among them would be stating a clear presumption in the guidelines against seizing reporters’ work product, either through subpoena or search warrant. Currently, the guidelines require that prosecutors “take all reasonable steps to obtain the information through alternative sources or means.” (A presumption test would be a higher standard to overcome.) Another priority will be making sure that search-warrant applications are subjected to the same level of internal scrutiny that subpoenas currently receive before they are approved by the attorney general. Some changes, meanwhile, will involve simply bringing the rules into the Internet Age. Originally established in 1970 and updated in 1982 to include telephone records, they don’t even mention emails, texts, or other forms of digital communication, like social media.
There’s more, as Klaidman notes. I’m not one of those people offended when government pursues leaks that could be detrimental to national security – especially a crucial source inside North Korea who was effectively deemed moot by Rosen’s report – and who may have suffered a terrible fate. But search warrants and subpoenas of reporters’ work need to end. The amateurishness of the reporter really isn’t salient here. Maintaining a bright line between the DOJ and the vital work of investigative journalism is.
And I should have seen that more clearly from the get-go.