Secret Justice Dept. subpoena drives home the need for a strong journalist shield law

Parker Higgins

Advocacy Director

With a reporter surveillance scandal of its own embroiling Biden’s Department of Justice, it’s now more important than ever for his administration to throw its weight behind passing a strong journalist shield law, such as Senator Ron Wyden’s PRESS Act.

In the last week, the public learned that the DOJ secretly issued a subpoena seeking phone record information of Guardian journalist Stephanie Kirchgaessner in the course of a leak investigation by the Office of Inspector General, according to a report obtained through a Freedom of Information Act request by reporter Jason Leopold. Subsequent reporting has revealed that the subpoena was issued in February of 2021, in the early days of the Biden administration.

Guardian editor-in-chief Katharine Viner described the secret subpoena as “an egregious example of infringement on press freedom and public interest journalism by the US Department of Justice.” We agree — and it’s not an isolated incident.

This revelation follows a series of scandals surrounding the surveillance of journalists in the waning months of the Trump administration, which weren’t disclosed until May 2021 — nearly a year later. In the following weeks and months, the Biden administration and Attorney General Merrick Garland introduced new, stronger guidelines purporting to further restrict the Department’s surveillance powers with regard to journalists. At the same time, the White House and Garland called for legislation to codify these new guidelines — a proposal Freedom of the Press Foundation endorsed.

But as we reported this February, the Department of Justice has taken no action to support any such legislation since, leading Senator Wyden’s office to issue harsh criticism of the administration’s silence.

The difference between DOJ media guidelines and an actual law like the one proposed by Wyden’s PRESS Act is significant, in terms of both clarity and effectiveness. As it stands, the DOJ’s Inspector General could argue that the new media guidelines do not apply to them. Other federal agencies, like DHS, which also recently faced a spying-on-journalists scandal, could claim the policy doesn’t apply to them either. As we explained when the guidelines were adopted, action from Congress is vital for the policy to have any teeth.

The Biden administration has repeatedly sought to distinguish itself from its predecessors in terms of its respect for press freedom; making gains that can be undone at the stroke of a pen is insufficient. Unfortunately, as with the Biden DOJ’s decision to continue pursuing charges against Julian Assange, this new fact pattern reveals a disappointing continuity that challenges the press-friendly image this White House has aimed to cultivate.

The best time for the Biden White House to take meaningful action to support the PRESS Act would have been upon its introduction. Failing that, the next best time is now.

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