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Garland Confronts Crisis Over Leak Inquiries and Journalism

  • June 13, 2021

Few argue that it is unjustified for the government, like any organization, to try to deter excessive unauthorized disclosures. But for most of American history, it did so through administrative action, like the threat of losing one’s security clearance or job, rather than treating it as a crime.

Prosecutors first convicted an official of violating the Espionage Act for leaking to the news media — as opposed to spying — in 1985, and that case then stood alone for another generation. But starting midway through the George W. Bush administration, and extending through the Obama and Trump presidencies, it became routine to send leakers to prison.

That change partly stemmed from the legally and politically charged issues that arose in the post-Sept. 11 period, like the Iraq war, torture and warrantless surveillance. The Bush Justice Department formed a task force dedicated to going after high-level national security leaks, helping alter the bureaucracy’s culture.

The change also stemmed from 21st-century communications, whose deluge of electronic trails — “metadata” showing who contacted whom and when, to who looked at or printed out a classified computer file — made it easier for the F.B.I. to identify suspects. (Encryption, of course, has separately made it harder for agents to eavesdrop on the content of communications.)

Several cracks in protections for journalism have formed under the resulting pressure. One is that investigators have increasingly tried to seize data about reporters’ phone calls and emails.

Prosecutors sometimes notified news organizations about their intentions in advance, which has led to negotiations and court fights, including a 2006 appeals court ruling upholding a subpoena for a Times reporter’s phone data. However, the statute of limitations passed and the investigation ended.

Prosecutors have also avoided such lengthy fights by arguing that advance notification would damage an investigation and secretly seized reporters’ data from communications companies without it. Examples include an Obama-era seizure of Associated Press phone data disclosed in 2013 — and at least four Trump-era leak investigations.

Article source: https://www.nytimes.com/2021/06/12/us/politics/government-leaks-garland-biden-administration.html

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