Abrams said he is particularly concerned that the records of the reporter, Ali Watkins, were seized without her knowledge, or giving her a chance to challenge their seizure in court. ”
That there was no apparent imminent crisis, he said, “means it’s all the more troubling that this was not handled by a subpoena to the journalist with a chance of a juridical determination.
First Amendment advocates erupted in outrage and concern in response to the news that the Department of Justice had seized years’ worth of email and phone records from a New York Times reporter as part of an investigation into government leaks – and wondered how many other journalists may be under similar surveillance.
“Anytime the government begins to prowl through journalistic emails, there is reason for significant First Amendment concern. This may or may not be the only instance that this administration has done this,” renowned First Amendment lawyer Floyd Abrams, who represented the Times in the Pentagon Papers case, told POLITICO.
Abrams said he is particularly concerned that the records of the reporter, Ali Watkins, were seized without her knowledge, or giving her a chance to challenge their seizure in court. The Obama administration aggressively pursued leak cases, prosecuting more than all previous administrations combined, but Attorney General Jeff Sessions said last year that his Justice Department is pursuing three times as many cases as were open at the current administration’s start.
“Given that there are dozens of leak investigations going on, I think it’s fair to assume that there are more reporters who are in this situation,” said Trevor Timm, executive director of the Freedom of the Press Foundation.
“How many other reporters,” he asked, “have had their phone records and email records taken without their knowledge and without the public’s knowledge?”
As the result of a leaks investigation, James Wolfe, a former Senate Intelligence Committee aide, was arrested and charged on Thursday with lying to investigators about his contacts with reporters. The indictment refers to four reporters, including Watkins.
Department of Justice spokeswoman Sarah Isgur Flores said that no subpoenas were issued in relation to the other three reporters mentioned in the indictment. She would not comment, though, on whether reporters in other cases have had their records seized.
“I can’t discuss any investigative methods,” she said.
On Twitter on Thursday evening, many reporters reacted with alarm. NBC national security reporter Ken Dilanian tweeted, “Leak prosecutions didn’t used to happen regularly. The gov’t used to acknowledge that we live in a democracy and the role of the press is to report on the work of intelligence agencies, which wield extraordinary power. The FBI and the Justice Dept have lost its way on this.”
Watkins previously worked at McClatchy, POLITICO and BuzzFeed, prompting BuzzFeed editor in chief Ben Smith to tweet, “This story concerns a reporter’s work @BuzzFeedNews. We are deeply troubled by what looks like a case of law enforcement interfering with a reporter’s constitutional right to gather information about her own government.”
Many reporters were also quick to argue that the Obama administration’s aggressive stance toward investigating leaks -his administration also seized reporters’ records – paved the way for the Trump administration. In her column Friday in The Washington Post, media columnist Margaret Sullivan wrote, “But Trump’s anti-press bluster aside, there’s a clear blueprint to follow – courtesy of Barack Obama, who once claimed that he would be the most transparent president ever but proved to be no friend to press rights.”
Abrams said, though, that the Obama administration eventually rewrote the guidelines on handling these types of cases and he is now concerned over whether the Trump DOJ is following them. Investigators are only supposed to seize reporters’ records – without giving them a chance to challenge the decision – in a small set of circumstances, including a pressing national security emergency.
“One of the most important protections journalists have is the ability to go to court and defend their First Amendment interests,” Abrams said. “On its face, this does not sound as if there was some immediate national security threat.”
That there was no apparent imminent crisis, he said, “means it’s all the more troubling that this was not handled by a subpoena to the journalist with a chance of a juridical determination.”
The aggressiveness of the Justice Department, he said, will have the effect of deterring others from communicating with reporters because of fear of exposure.
“I don’t think there’s any doubt that the effect of this conduct by the Department of Justice and potentially other such conduct could well have serious chilling effect on the revelation of highly newsworthy and significant information,” Abrams said.
Timm highlighted that the Department of Justice provided no evidence that the information Wolfe is accused of passing to Watkins was classified, something that Watkins and Wolfe have both denied.
“That is more evidence that they violated the Justice Department’s internal guidelines by not informing the reporter before-hand that they were going through her information,” he said.
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, raised several other questions in an email to POLITICO.
“It is unclear whether the government exhausted other options before seizing Watkins’ phone and email records,” he said. “It’s also not apparent why it was necessary to collect years’ worth of sensitive information. Finally, there is a question whether Watkins was notified in a timely way of the surveillance.”
Abrams said it is too soon to draw broad conclusions, but “it’s not too soon to be concerned.” At issue, he said, is whether the apparently low bar the Department of Justice used to seize Watkins’ records without her knowledge represents a one-time incident related to specific circumstances or indicates a broader approach.
“If their position is that there was a particular reason in this case why we had to do it this way, that’s one thing, and we can have arguments about whether that’s persuasive or not,” he said. “But if the position is, ‘This is a leak investigation, why shouldn’t we be able to go and follow up our efforts in any generally lawful way to find out everything about it?’ – that sort of approach minimizes, even eviscerates First Amendment interests entirely.”
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