Many groups are sounding the alarm about President-elect Donald Trump’s nomination of Sen. Jeff Sessions (R-AL) to be Attorney General, citing his history of opposing voting rights, immigration, LGBT rights, racial justice, and marijuana legalization. Now, advocates for press freedom are voicing concerns that Sessions has a history of supporting policies that put reporters at risk and prevent government transparency.
“He’s never been a fan of anything involving news-gathering or freedom of the press,” Kevin Goldberg, a media law attorney who represents the American Society of News Editors, told ThinkProgress.
Goldberg pointed to two key legislative battles over the past few years that revealed Sessions’ troubling stance on media rights: in 2013 he opposed a law to protect reporters from being forced to reveal their sources, and in 2015 he tried to block a bill that would make government documents more accessible to the press.
The pen is mightier than the shield
Almost all U.S. states have laws shielding reporters who publish government secrets from being forced to reveal their sources, but no such law exists on the federal level. This means the only thing currently preventing the government from prosecuting and even jailing reporters who publish leaked information is an informal agreement that could easily be reversed.
Lawmakers have tried for years to pass a federal “shield” law, and Sessions opposed it every time.
In a 2009 oversight hearing, Sessions said such a law would “do damage to our national security,” adding: “There are reasons, very good reasons, that nations have to maintain a certain amount of secrecy.” He wrote an op-ed that year saying the policy “protects those who use the media to illegally expose America’s national security secrets.”
“There are reasons, very good reasons, that nations have to maintain a certain amount of secrecy.”
In 2013, he warned that the federal protections would encourage more government employees to leak information, and called the bill a “bad piece of legislation” and “schizophrenic.” He introduced 27 amendments, none of which were adopted, including provisions to strip away reporters’ rights when they publish anything from a grand jury proceeding or any classified information.
“To say by definition that anything classified that falls into reporters’ hands should not be published — especially if that information doesn’t harm anyone and instead just covers up government wrongdoing — that would really undermine the good work journalists do all the time handling, vetting, and responsibly publishing classified information,” Goldberg said, noting that members of both parties agree the U.S. government has a huge problem with over-classification. “He just doesn’t seem to really appreciate the need for a shield law to ensure the free flow of information to public.”
More troubling still, said Goldberg, Sessions pushed for the bill to narrowly define who counts as a journalist.
“Based on what he said in those hearings, I don’t think he would agree to the idea of a citizen journalist or blogger [deserving protection],” he said, noting that he first called for only extending protections to “salaried” journalists and not freelancers. When the final bill covered anyone with the “primary intent to investigate events and procure material in order to disseminate to the public news or information,” Sessions grumbled that it did not “come close to being restrictive enough.”
The New York Times’ Judith Miller spent 85 days in jail in 2005 for refusing to disclose her sources. Freelance blogger Josh Wolf was held in jail for 226 days in 2007 for refusing to hand over video he filmed at a protest. New York Times reporter James Risen fought for years against a government order to reveal his source. In 2013, the Justice Department named Fox News reporter James Rosen a “co-conspirator” for publishing leaked State Department information, and seized his personal e-mails and phone records.
Press freedom advocates worry such cases could “accelerate” if Sessions is confirmed as Attorney General, creating a chilling effect where reporters self-censor and government employees are afraid to speak out about wrongdoings.
“Attorney General Eric Holder said very clearly, ‘I will not put journalists in jail for doing their jobs.’ He made very clear they were off limits,” Goldberg said. “Would an Attorney General more concerned about national security leaks take the same approach? That’s the concern.”
Sessions’ office did not respond to ThinkProgress’ inquiry on whether — if confirmed to be Attorney General — he would prosecute reporters who publish classified information.
Freedom of Information
Despite Sessions’ best efforts to block it, Congress passed a bill this year that breathed new life into the decades-old Freedom of Information Act (FOIA), making government documents more accessible to reporters and the public. The FOIA Improvement Act of 2016, among other things, created an online portal for records requests, eliminated some fees, forced more disclosure of internal documents more than 25 years old, and ordered agencies to make frequently requested records available to everyone online.
In the current political climate, said Goldberg, these reforms are increasingly important for reporters and their readers. “Now more than ever, as people are questioning journalists’ writing, source materials in the form of a government document become more crucial in stating the case for the truth,” he said.
Sessions put a hold on the bill, just as he did when similar reforms were introduced in 2014. He argued that some of the ordered disclosures would violate attorney-client privilege. His office e-mailed the Justice Department to ask if a 40-year time frame for disclosure was more appropriate than a 25-year period. After blocking passage of the bill for weeks, Sessions relented, and it passed unanimously.
But Goldberg and other press freedom advocates worry that Sessions would bring his skeptical view of FOIA to the Attorney General post, where he would have a huge sway over how FOIA policy functions across the government.
“If the public can’t be informed, we don’t have an informed democracy, and maybe we don’t have a democracy at all.”
“The last thing journalism needs right now is less access,” said Gideon Grudo, the chair of the Freedom of Information Committee for the Society of Professional Journalists. “We have a right to know certain things as long as they don’t jeopardize the safety of any personnel. We need to be able to hold those in power accountable. So I hope Sessions doesn’t use his platform to oppress journalism.”
Grudo, a journalist at Air Force Magazine, noted that stories like the recent Washington Post exposé of the Pentagon’s cover up of $125 billion in wasted spending is a perfect example of why journalists need access to government records in order to act as watchdogs.
“No hardworking civilian has the time to obtain and parse through declassified information but journalists do,” he said. “We have a duty to help the public make informed decisions and votes. If the public can’t be informed, we don’t have an informed democracy, and maybe we don’t have a democracy at all.”
Sessions’ office did not respond to ThinkProgress inquiry on how he would advise agencies to interpret FOIA if confirmed as Attorney General.