Journalists and Sources Will Face Espionage and Prosecution Under the 2025 Project

The last twenty years have been a very bad time for the right to freedom of the press in the United States. Successive administrations from both parties have normalized using the Espionage Act to prosecute whistleblowers and journalists’ sources. In June, the Department of Justice (DOJ) secured a conviction. WikiLeaks founder Julian Assange under the Espionage Act. By doing this, they achieved something once thought unthinkable: Successful criminalization Routine newsgathering activities long believed to be protected by the First Amendment. This criminalization of journalism is, unsurprisingly, accompanied by increased surveillance of journalists. And if the right-wing think tank Heritage Foundation gets its way, it will become much easier to spy on journalists and investigate their sources.

Inside Project 2025 – A blueprint for how a Republican president should govern if he wins this year’s election – The Heritage Foundation calls on the Justice Department to “use all tools at its disposal to investigate the leaks.” Although Donald Trump has publicly tried to distance himself from Project 2025 in recent weeks, close ties He praised at least 140 people who helped build it and his previous work on the Heritage Foundation’s 2025 Project, raising fears that he might try to implement many of the proposals if elected.

To achieve Project 2025’s stated goal of ensuring that the Justice Department uses “all tools at its disposal” to counter whistleblowers, the Heritage Foundation is calling for the repeal of guidelines that limit when law enforcement can access journalists’ communications. They also want to “prioritize the recruitment of additional counterintelligence and security personnel” who would help uncover journalists’ sources so the sources can be prosecuted.

The Heritage Foundation justifies this crackdown on journalists and whistleblowers by saying that intelligence “staff have adequate access to the allegations of legitimate whistleblowers under the protections provided by the Inspectors General and Congress.” But as Mike German, an FBI whistleblower and fellow in the Freedom and National Security Program at the Brennan Center for Justice, told me, “Whistleblower protections for FBI and intelligence agency employees are inadequate and rarely prevent retaliation, so people often decide to come forward. It’s a waste of government.” about fraud and media abuse. This is often the only effective way to alert the public to illegal government activities.”

DOJ News Media Policy

Attorney General Merrick Garland on October 26, 2022 implemented A revised policy restricting when the Justice Department can obtain communications records from journalists or compel them to testify. The movement came in response to this revelations He said Trump administration wanted email records of four reporters New York Timesand the phone records of three reporters were successfully seized. WashingtonPost, and phone and email records CNN correspondent. All of these seizures were part of investigations into the leak of classified information. Initially, the Biden administration continued the legal battle waged by the Trump administration to obtain this authority. Times took reporters’ emails and placed the paper below speaking order moved to prevent them from disclosing the legal fight, but Biden’s Justice Department later reversed course and Garland instituted a new policy blocking such seizures.

The government doesn’t need the content of a journalist’s communications to cause harm, it just needs records of who he contacted. for six yearsThe Obama administration tried to do this to force James Risen, then New York TimesTo cite the source of the CIA’s revelations about a failed covert action against Iran. Attorney General Eric Holder went so far as to threaten to imprison Risen if he did not disclose his source to prosecutors. Embarrassed by widespread outrage, Holder backed down In 2014. However, the Justice Department continued to prosecute the accused source, Jeffrey Sterling. (Full disclosure: Jeffrey Sterling is a board member of Defending Rights and Dissent.)

The government’s case against Sterling consisted mostly of phone records showing Sterling talking to Risen. Sterling had many reasons for talking to Risen, other than revealing undercover activities. Sterling had sued the CIA for racial discrimination, and Risen had taken up the case. Sterling maintained his innocence and took the case to trial. But the jury convicted Sterling based solely on phone records and sentenced him to three and a half years in prison. Not Boring Reporters condemned the conviction, stating“Sterling is now in prison simply for speaking regularly to a journalist.”

This kind of prosecution is exactly what the authors of Project 2025 are doing. We hope to make it easier. While such prosecutions are supported by the seizure of journalists’ records, they are ultimately made possible by the Espionage Act and the treatment of whistleblowers as counter-intelligence threats.

Counterintelligence and Espionage Act

Inside Project 2025, The Heritage Foundation is not just calling for a rollback of anti-espionage protections for journalists. They want to expand the counterintelligence apparatus so that there are more agents working on identifying and prosecuting journalists’ sources.

At first glance, it may seem odd to task a counterintelligence agency, which has traditionally focused on hostile foreign agents, with identifying journalists’ sources. Unfortunately, this is already the norm. Because leaks of “national defense information” to the media are subject to the outdated and undemocratic Espionage Act, the FBI’s counterintelligence division has the authority to investigate media leaks. In fact, the FBI’s description of its counterintelligence program on its website lists it as follows: to protect Beyond the fight against foreign spies or stopping the proliferation of weapons of mass destruction, “secrets of the U.S. Intelligence Community” are on the list of priorities. The list is not ranked, but its order certainly provides a window into understanding the FBI’s priorities.

Investigating journalists to reveal their sources is fundamentally undemocratic. But using the FBI’s counterintelligence program to monitor journalism only compounds the problem. The FBI has dual national security and law enforcement functions. When it comes to national security, civil liberties protections are fewer and surveillance powers are broader.

As the Germans say Truth, “Using counterintelligence officials to investigate this story is an affront to the First Amendment and democratic principles. American journalists are not spies, and the public has the right to know that our law enforcement and intelligence agencies are operating illegally or ineffectively. “Restrictions on the government’s authority to investigate journalists need to be strengthened, not weakened.”

If Trump wins the presidency and implements the recommendations laid out in Project 2025, he and the intelligence community will likely roll back restrictions on when they can spy on journalists and increase surveillance of journalists, expanding one of the most dangerous aspects of the intelligence community. media.

Resisting Attacks on Press Freedom

The best way to resist Project 2025’s attacks on press freedom is for Congress to take positive action to protect the free press. House of Representatives unanimously passed Protecting Reporters from Exploitative State Espionage (PRESS) Actbut it gets stuck in the Senate. Under the PRESS Act, journalists will be protected from revealing their sources and will not be subpoenaed to find the source of their news. While a Trump-appointed attorney general could reverse Justice Department policy with the stroke of a pen, a law passed by Congress can only be repealed by Congress.

Still, passing the PRESS Act is not enough. Congress needs reform The Espionage Act does not apply to journalists or government officials who warn the media about actual abuses of power. Eliminating the government’s ability to arrest whistleblowers eliminates one of the main legal justifications for spying on journalists to prey on their sources. Congress must be border The broad national security powers of the FBI and other agencies make clear that when First Amendment rights are at stake, surveillance cannot be authorized unless there is suspicion of a crime, and journalism is not a crime.

Administrations of both parties have abused the Espionage Act, setting a terrible precedent that journalists’ sources are fair game for prosecution. In doing so, they also expanded surveillance of journalists. The Biden administration deserves particular scorn for continuing two Espionage Act investigations launched during the Trump years, drone whistleblower Daniel Hale and journalist Julian Assange.

Garland’s modest restrictions are nevertheless vital to maintain. There are many in the intelligence community and their bipartisan supporters who would like to see them repealed. And while these powers are dangerous no matter who is president, the dangers are even greater under a potential Trump administration. Trump’s personal hostility towards the press is well known and he appears poised for a second term escalate tension Legal attacks on the media. Project 2025’s attacks on press freedom provide a blueprint for achieving this.