WASHINGTON -- The Justice Department will be restricted from labeling a journalist as a criminal co-conspirator in seeking a search warrant to gain access to reporting materials under new media guidelines issued on Friday.
“The Department of Justice is firmly committed to ensuring our nation’s security, and protecting the American people, while at the same time safeguarding the freedom of the press," Attorney General Eric Holder said in a statement. "These revised guidelines will help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures."
Holder also indicated the administration's ongoing support for media shield legislation, saying there were "additional protections that only Congress can provide." Holder said he looked forward to "working with leaders from both parties to achieve this goal, and am grateful to all of the journalists, free speech advocates, experts, and Administration leaders who have come together in recent weeks -- in good faith, and with mutual respect -- to guide and inform the changes we announce today.”
The updated guidelines, expected to take effect almost immediately, are the result of a review undertaken by Holder at the direction of President Barack Obama.
The Justice Department came under fire in mid-May for secretly obtaining the emails of Fox News reporter James Rosen in 2009. Prosecutors implied they were investigating Rosen, allowing federal authorities to obtain his emails without his knowledge. Holder signed off on treating Rosen as a co-conspirator in the case, but he later expressed regret for that action.
The Associated Press revealed in May that the DOJ had obtained phone records for 20 lines used by editors and reporters there, during an investigation that followed a 2012 story describing a CIA-thwarted terrorist plot in Yemen. That action was authorized by Deputy Attorney General James Cole.
Investigators did not notify the AP to request the phone records before obtaining them, a break with protocol in dealings between the government and the press. Gary Pruitt, chief executive of the AP, called the sweeping seizure “unconstitutional.”
Under the new policy, news organizations will be given advance notice when investigators seek access to news-gathering materials, except in situations where the attorney general determines that "for compelling reasons, advance notice and negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm."
That determination will be made after consulting members of a newly created News Media Review Committee, which will include senior DOJ officials who are not directly involved in the investigations and who have relevant expertise and experience in media matters.
The DOJ’s tactics in dealing with the AP and Fox News journalists drew criticism from members of the media and free-speech advocates, some of whom viewed the measures as essentially criminalizing journalism. The revelations, and ensuing coverage, shed more light on the Obama administration’s aggressive and unprecedented use of the Espionage Act in prosecuting current and former government officials for leaking to journalists.
In a May speech amid the media firestorm, President Obama said he was “troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable” and announced plans for Holder to gather news organizations and present a review of the guidelines on July 12.
The Holder-media meetings were not without their own controversy, as several news organizations, including the AP, The New York Times, The Huffington Post, CNN and Fox News declined invitations because of the DOJ’s wish to hold the meetings off the record. Several outlets, including The Washington Post, Politico and ABC News, accepted the ground rules, which were later loosened to allow participants to broadly discuss what had transpired.
Obama and Holder met Friday in the Oval Office and the president accepted the guidelines, White House Press Secretary Jay Carney told reporters in his regular briefing.
After the report's release, White House spokesman Matt Lehrich said the president "appreciates the Justice Department’s work to revise their guidelines, and he believes this report is an important step towards finding the balance between dealing with dangerous leaks of classified national security information and protecting the rights of journalists to freely gather and report the news."
"He also continues to believe that Congress should quickly pass media shield legislation and looks forward to working with them to do so," Lehrich added.