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Jeff Sessions hints Department of Justice could force media to give up sources

More subpoenas could force journalists to give up anonymous sources or face jail time to protect them

Clark Mindock
New York
Friday 04 August 2017 17:25 BST
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Jeff Sessions on leaks: We are "reviewing policies" for subpoenaing the press

Attorney General Jeff Sessions says that the Department of Justice (DoJ) is reviewing policies for subpoenaing reporters during investigations of federal intelligence leaks, an indicator that the US government may consider more aggressive tactics to try and force journalists to identify their sources.

"One of the things we are doing is reviewing the policies affecting media subpoenas," Mr Sessions said, announcing his administration's crackdown on leaks during a press conference. "We respect the important role that the press plays, and we will give our support. But, it is not unlimited. They cannot place lives at risk with impunity."

Mr Sessions said that he had instructed his Justice Department to review its leak prosecution policies earlier this year, and that the results "concerned" him. There were too few referrals for prosecution over classified leaks, too few investigations, and an insufficient amount of resources dedicated to those investigations, he said.

Mr Sessions has since then instructed Deputy Attorney General Rod Rosenstein to oversee al classified leak investigations, and to monitor each case. The DoJ is tripling the number of active leak investigations as well, while the FBI is devoting more resources to cracking down on leaks. Four people, he said, had already been charged with unlawfully disclosing classified material, or for concealing contacts with federal officers, he said.

"We will not allow rogue anonymous sources with security clearances to sell out our country," Mr Sessions said. "These cases, to investigate and prosecute, are never easy. But cases will be made and leakers will be held accountable."

Mr Sessions then left without taking any questions from the media.

The announcement follows months of leaks from the White House, which officials there say are damaging to national security. Just recently, a transcript from conversations between Donald Trump and the leaders of Mexico and Australia were leaked to the Washington Post, detailing contentious contact between the US president and two ally leaders. Those leaks, while providing a rare glimpse into Mr Trump's management style as President, were widely criticised by Trump allies and foes alike.

"This is beyond the pale and will have a chilling effect going forward on the ability of the commander in chief to have candid discussions with his counterparts," Ned Price, a former National Security Official during the Obama administration, told the Hill of the transcript leaks.

The White House itself had already announced that they planned on finding whoever leaked those transcripts, and have frequently said that the leaks are damaging to national security. Hours before the Sessions announcement, White House Counselor Kellyanne Conway indicated that the West Wing may use polygraph tests in order to find the culprit.

"It's easier to figure out who's leaking than the leakers may realise," she said in an appearance on Fox & Friends.

"Well, they may, they may not" use lie detectors," she continued.

Should Mr Sessions' review of subpoena policies for journalists result in more reporters being compelled to disclose their protected sources, however, it is entirely likely that it will result in members of the media facing jail time for refusal to honour court subpoenas. A basic rule taught in journalism school sit to honour and protect sources who have been granted that privilege. That commitment by journalists is often necessary to form trust with sources who may provide important information relevant to the public interest, and to ensure that those whistle blowers do not risk losing their jobs and livelihood for providing that information.

"Attorney General Sessions’ recent comments about ‘reviewing policies affecting media subpoenas’ represent a dangerous escalation of the administration’s war against the press. The Department of Justice is explicitly threatening to haul journalists before grand juries and force them to testify about their confidential sources or face jail time," Peter Sterne, a senior reporter at the Freedom of the Press Foundation, said in a statement provided to The Independent. "Sessions’ suggestion that journalism is a threat to national security is particularly concerning. Journalists play a crucial role in our democracy, informing the public about the government’s activities."

"Sessions’ comments seem intended to have a chilling effect on journalism, by making reporters and their sources think twice before publishing information that the government does not like. That will leave leave all Americans less informed about what the Trump administration is doing behind closed doors," Mr Sterne continued.

The Trump administration would not be the first to restrict the American press and attempt to deter would-be whistleblowers from leaking classified intelligence to journalists.

His predecessor, Barack Obama, oversaw more Espionage Act prosecutions than every administration before his combined. Of the 11 Espionage Act prosecutions dating back to 1945, seven occurred while Mr Obama was in the White House.

That led to an often-tense relationship between the Obama White House and media organisations, which charged that the administration was being needlessly aggressive and intrusive in cracking down on leakers. Those scenarios that the media said were over the top included subpeonas for the phone records of Associated Press staff after a 2012 story detailing a foiled bomb plot, and labeling a Fox News reporter a "co-conspirator" following a report on North Korea.

The Obama DoJ later revised its guidelines for leak investigations in 2015 to require additional approvals before reporters could be subpoenaed.

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