Why change leak in­ves­ti­ga­tion rules that work?

Pawtucket Times - - OPINION - By KI­RAN RAJ and PAUL O’BRIEN Raj was se­nior coun­sel to the deputy at­tor­ney gen­eral at the Jus­tice Depart­ment from 2013 to 2016. O'Brien was deputy as­sis­tant at­tor­ney gen­eral for the Jus­tice Depart­ment's Crim­i­nal Divi­sion from 2012 to 2016.

At­tor­ney Gen­eral Jeff Ses­sions re­cently an­nounced that the Jus­tice Depart­ment would re­view his agency's me­dia guide­lines, re­port­edly look­ing to make it eas­ier to ob­tain in­for­ma­tion from mem­bers of the me­dia in leak in­ves­ti­ga­tions. This in­cludes more ag­gres­sively go­ing af­ter unau­tho­rized dis­clo­sures of clas­si­fied in­for­ma­tion.

Such a move is un­nec­es­sary for suc­cess­ful pros­e­cu­tions, and it could have long-term neg­a­tive con­se­quences on the free press.

Fed­eral prose­cu­tors and agents have an obli­ga­tion to ag­gres­sively pur­sue the un­law­ful dis­clo­sure of clas­si­fied in­for­ma­tion even if the dis­clo­sure is made to a jour­nal­ist. But when the gov­ern­ment's in­ter­est in iden­ti­fy­ing leak­ers con­flicts with jour­nal­ists' need to pro­tect their sources, the gov­ern­ment must care­fully balance both its in­ter­est in de­liv­er­ing jus­tice as well as the le­git­i­mate and cru­cial news­gath­er­ing func­tion of the me­dia.

Strik­ing that del­i­cate balance is not easy. We should know — this was the task we un­der­took at the Jus­tice Depart­ment from 2013 to 2015. We led a team that, af­ter a nearly two-year re­view, up­dated the depart­ment's me­dia guide­lines to al­low prose­cu­tors to do their jobs ef­fec­tively while si­mul­ta­ne­ously safe­guard­ing the free press and its role in gov­ern­ment ac­count­abil­ity.

We are con­fi­dent we de­vel­oped a process that re­spects the con­cerns of jour­nal­ists while al­low­ing prose­cu­tors to in­ves­ti­gate na­tional se­cu­rity con­cerns. In­deed, our re­view in­cluded in­put from stake­hold­ers both inside and out­side the depart­ment, in­clud­ing ca­reer prose­cu­tors and rep­re­sen­ta­tives of the news me­dia.

The changes we im­ple­mented in 2015 were long-over­due. The Jus­tice Depart­ment last made ma­jor re­vi­sions in 1980 af­ter the Supreme Court up­held the gov­ern­ment's power to ex­e­cute a war­rant on a news­pa­per. In­deed, the de­bate over the depart­ment's sub­poena of As­so­ci­ated Press phone records prompted Pres­i­dent Barack Obama in 2013 to ask At­tor­ney Gen­eral Eric Holder to re­view me­dia guide­lines.

The re­sult­ing changes we made were both sig­nif­i­cant and nec­es­sary. The new pol­icy ex­pressly stated that a mem­ber of the news me­dia will be no­ti­fied be­fore the depart­ment uses le­gal process — such as sub­poe­nas and war­rants — to ob­tain records, un­less the at­tor­ney gen­eral de­ter­mines that such no­tice would pose a sub­stan­tial threat to an in­ves­ti­ga­tion's in­tegrity, risk grave harm to na­tional se­cu­rity or present an im­mi­nent risk of death or se­ri­ous bod­ily harm. Even if the at­tor­ney gen­eral makes that de­ter­mi­na­tion, no­tice can be de­layed for only 90 days — a rule in­tended to rec­og­nize that news me­dia records should be sought only as a last re­sort.

The guide­lines also added high­er­level ap­provals and re­views of le­gal process served on the me­dia. Se­nior Jus­tice lead­ers — in­clud­ing the chief pri­vacy and civil lib­er­ties of­fi­cer and the di­rec­tor of the Of­fice of Pub­lic Af­fairs — now must pres­sure-test the ne­ces­sity of is­su­ing sub­poe­nas for jour­nal­ists' records, as­sur­ing that the en­tire depart­ment lead­er­ship has con­sid­ered both the need and the po­ten­tial harm be­fore any sub­poena is is­sued.

In some cases, the re­vi­sions made it eas­ier on prose­cu­tors. For ex­am­ple, the guide­lines do not ap­ply if there is rea­son to be­lieve that an in­di­vid­ual or en­tity is work­ing for a for­eign power or pro­vid­ing ma­te­rial sup­port for a ter­ror­ist or­ga­ni­za­tion. In such rare in­stances, the in­di­vid­u­als or en­ti­ties in ques­tion do not de­serve the pro­tec­tion we af­ford to mem­bers of the news me­dia.

The depart­ment also im­proved trans­parency by com­mit­ting to re­lease sta­tis­ti­cal data on an an­nual ba­sis re­gard­ing the use of me­dia-re­lated process.

The cur­rent me­dia guide­lines re­flect the be­lief that there are tough choices to make among oft-com­pet­ing val­ues. The up­dated guide­lines en­sure that any at­tempt to ob­tain in­for­ma­tion from jour­nal­ists in sig­nif­i­cant leak in­ves­ti­ga­tions oc­curs in ex­treme cases where all other rea­son­able op­tions have failed. At the con­clu­sion of our re­view, we were grat­i­fied that the Re­porters Com­mit­tee for Free­dom of the Press is­sued a state­ment to wel­come the changes and praise the process by which we ar­rived at our re­vi­sions.

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