Posted: 30 Mar 2018 09:22 AM PDT
The Trump Justice Department escalated its crackdown on journalists' sources and whistleblowers this week, charging former FBI special agent Terry Albury with two counts under the Espionage Act for allegedly leaking information to an unnamed news outlet, widely believed to be The Intercept.
The case is yet another example of the outrageous—and recently, far too common—use of the Espionage Act, a World War I-era relic, to persecute the sources of journalists for the crime of informing the American public. The fact that whistleblowers have been thrown in jail with increasing regularity using a law meant for spies should be an outright scandal. As First Look Media, The Intercept's parent company, said through their Press Freedom Fund, "The misuse of the Espionage Act chills truth tellers, impedes investigative reporting, and compromises the democratic process."
But it's also important to understand what Mr. Albury is alleged to have leaked and how it makes him a true whistleblower. News reports indicate he is accused of providing The Intercept documents related to its "FBI's Secret Rules" reporting project, an important series of articles that looks into how the FBI secretly conducts investigations.
Notably, the very first story The Intercept published in that series was about a document containing the FBI's classified rules for specifically targeting journalists with National Security Letters (NSLs), the controversial and due process-free surveillance tool that the agency can serve on telecom companies like AT&T and Verizon to spy on journalists and root out their sources.
The Justice Department's strict rules for when they can and can't conduct surveillance of journalists are supposed to governed by the agency's "media guidelines," which the Obama administration updated and strengthened after several embarrassing scandals when the Obama-era Justice Department was caught surveilling journalists. But critically, NSLs are completely exempt from those rules.
Instead, the rules for using NSLs against journalists are in the classified appendix of the FBI's "Domestic Investigations and Operations Guide" (DIOG), under the heading "National Security Letters for Telephone Toll Records of Members of the News Media or Media Organizations." The secret rules allow the Justice Department to use NSLs with virtually none of the restrictions or safeguards that are in place if they attempted to get a subpoena or court order for a journalist's private telephone toll records. You can see the leaked version of the rules from here:
Along with Knight First Amendment Center at Columbia, we are currently suing the Justice Department under the Freedom of Information Act for the current versions of these documents.
But as you can see from the leaked 2013 version, it's absurd these rules were ever classified in the first place. There's nothing "damaging" to national security for the public to know the FBI's "approval requirements" consist of merely getting an additional sign off from a superior to target a journalist with an NSL. It's clear from looking at the document that the classification system is being abused to cover up embarrassing and controversial practices which have no business being stamped secret.
Instead, it's likely that the government wants these rules kept secret so that the FBI can continue to circumvent the DOJ media guidelines and spy on journalists in secret, without facing any public scrutiny of the practice.
The prosecution of Mr. Albury is outrageous, but if he was The Intercept's source, then he exposed the government's secret powers to spy on news organizations with no oversight. For that, he should be viewed by journalists as a hero.
Disclosure: First Look Media, The Intercept's parent company, provides Freedom of the Press Foundation with an annual grant and three employees of First Look, Glenn Greenwald, Laura Poitras, and Micah Lee, sit on FPF's board. They were not consulted in the drafting of this blog post.
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