Amidst the widespread journalistic euphoria for AG Garland's recently announced restrictions on the use of compulsory process to obtain info from the media, I have a few nits to pick:
1. As a general matter, it is not entirely clear how the AG memo substantively differs from /1
the current content of 28 CFR §50.10 which sets out DoJ policies in pursuing info from members of the news media.

2. Section 50.10 specifically includes, as a factor in the balancing test referenced in Garland's memo, the need to safeguard "the essential role of the free /2
press in fostering government accountability and an open society."
3. Section 50.10 already requires AG approval for a §2703(d) or 3123 subpoena seeking records of electronic communications, the most intrusive form of search short of a search of person or residence /3
4. So, it isn't immediately obvious to me what Garland believes he is giving the media that isn't already found in Section 50.10.

5. OTOH, Section 3(b) of Garland's memo is troubling and poorly drafted. It broadly prohibits the use of compulsory process where a member /4
of the news media has, "in the course of newsgathering, only possessed or published government information, including classified information." The prohibition makes no exception for 18 USC § 798 where the essence of one of the statutorily proscribed violations /5
IS PUBLISHING classified information "concerning the communications intelligence activities of the US or any foreign government." In other words, Garland has abandoned the use of the government's most powerful investigative tools with respect to investigations of a /6
congressional law that specifically criminalizes the PUBLICATION of a type of classified information deemed uniquely vital but vulnerable; i.e., communications intelligence activities. This should be corrected, if carelessly unintentional, or reconsidered, if deliberately /7
omitted. If maintained, Garland has essentially neutered investigations of the unauthorized disclosure of the types of classified information identified in 18 USC §798.
6. Lastly, Garland appears to lend open support to a federal "shield law" which is the Holy Grail of /8
journalists. Why? No shield law is required by the First Amendment and, IMO, 28 CFR §50.10 affords ample protection for legitimate journalistic activities. For those how have long insisted that the absence of a federal shield law hampers journalism, I note that /9
journalists continue to operate robustly in each of the 10 states that lack any sort of shield law. IMO, the current construct of constitutional and regulatory protection strikes the right balance between the First Amendment and national security. /END
designed specifically to

• • •

Missing some Tweet in this thread? You can try to force a refresh

Keep Current with George Croner

George Croner Profile picture

Stay in touch and get notified when new unrolls are available from this author!

Read all threads

This Thread may be Removed Anytime!


Twitter may remove this content at anytime! Save it as PDF for later use!

Try unrolling a thread yourself!

how to unroll video
  1. Follow @ThreadReaderApp to mention us!

  2. From a Twitter thread mention us with a keyword "unroll"
@threadreaderapp unroll

Practice here first or read more on our help page!

More from @GeorgeCroner

29 Jun
Yes, to be clear, the report that LeBlanc excoriates is the classified report the PCLOB submitted to Congress, NSA and other concerned federal agencies addressing NSA’s XKeyscore collection program and, in fairness, it seems much easier to take public shots at the content of /1
the classified report with which LeBlanc obviously disagrees when the actual content of the report cannot be publicly disclosed. That said, there are aspects of LeBlanc’s criticisms that suggest he perceives a role for the PCLOB that exceeds the statutory mandate Congress /2
created for that agency. The PCLOB’s purpose as expressed by Congress is “(1) analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; /3
Read 9 tweets
13 Jun
I have documented my concerns regarding the issue of essentially immunizing the press through a de facto federal shield law where leaks involve the disclosure of classified national security information. E.g.….
So, like @charlie_savage, I'm curious 1
about the details of the new Biden-Garland DOJ policy. For example, let's assume the leak divulges classified information concerning the communications intelligence activities of the U.S. According to 18 USC §798, the transmission of such classified information is a crime AND 2
the act of publishing such information is also a separate and distinct crime. So, does the new DOJ policy mean that this administration is foregoing the option of subpoenaing a reporter to ascertain the source of a leak where both the leaking and the publication of the 3
Read 7 tweets
6 Jun
Bravo, @DavidLaufmanLaw. A voice of reason. 🧵

The subpoenaing of reporters has been much in the news with many media organizations lauding the Biden Administration’s statement that issuing subpoenas for the records of reporters in leak investigations is not consistent with 1
the President’s policy as provided to DoJ. If this statement means the Administration has ruled out subpoenaing reporters under any circumstances in any leak investigation, this is, frankly, contrary to existing DoJ regulations developed and implemented during the Obama, not 2
the Trump, Administration.

A basic principle of the American judicial system is that the public has a right to every man’s evidence. No blanket exception exists for media members or newsgathering activities. Notably, there is no federal shield law protecting newsgathering 3
Read 9 tweets
31 Mar
I'm delighted at the successful effort by DoJ in this leaks case. But, again, the prosecution stops at the transfer to the reporter. Why? It's clear from the DoJ press release that the recipient reporter's news outlet published, in whole or in part, no less than 23 of the /1
documents leaked by Hale. Further, "[e]leven of [those]documents were marked as Top Secret or Secret."
DoJ's superseding indictment in the Julian Assange case lays out the approach to prosecuting the reporter/publisher receiving classified information, and I write about /2
the merit in prosecuting Assange here.…

Clearly, the media members in this case knew they were publishing classified national security information. Assange is being prosecuted for what is, essentially, the same conduct /3
Read 5 tweets
16 Mar
To be clear, this ODNI report is a declassified version of the classified report, which remains classified. It differs from the 2017 IC Analysis, which focused exclusively on Russian activities and intentions regarding the 2016 election, by evaluating the conduct of other /1
foreign actors directed at the 2020 election. The Report uses the same estimative language as the 2017 version but, unlike 2017 version, does not identify the views of individuals agencies within the IC.
Key takeaways: (1) there is no indication that any foreign actor /2
attempted to alter any technical aspect of the 2020 voting process. The Report notes that"unlike 2016, we did not see persistent Russian efforts to gain access to election infrastructure." (2) But, Putin did authorize, and Russian actors conducted, influence ops aimed at /3
Read 11 tweets
25 Feb
There is a need for some context here. The FBI's FISA process has received justified criticism with respect to its Carter Page FISA applications. However, it is worth noting, given the implications of this post, that a review of other FBI FISA applications identified by the /1
DoJ IG revealed no material errors. Still, the Page situation produced plenty with which to be concerned about the FBI's FISA process. But, best not to get too far ahead on this case. The defendant, Gartenlaub, filed a motion to suppress in his criminal trial that was denied /2
by the trial judge so, unlike Page, a FISC judge reviewed the initial FISA application (likely for both surveillance and physical search authority) AND another federal judge reviewed the record in connection with the suppression motion filed at trial (concluding that the /3
Read 10 tweets

Did Thread Reader help you today?

Support us! We are indie developers!

This site is made by just two indie developers on a laptop doing marketing, support and development! Read more about the story.

Become a Premium Member ($3/month or $30/year) and get exclusive features!

Become Premium

Too expensive? Make a small donation by buying us coffee ($5) or help with server cost ($10)

Donate via Paypal Become our Patreon

Thank you for your support!

Follow Us on Twitter!