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Newly Released Eric Holder Memo: Feds Can Use FISA to Spy on Journalists

And the guidelines for spying on journalists may be even looser under Trump.

YURI GRIPAS/REUTERS/NewscomYURI GRIPAS/REUTERS/NewscomThe federal government can use the Foreign Intelligence Surveillance Act (FISA) to spy on journalists. So said a pair of 2015 Justice Department memos, including one from then–Attorney General Eric Holder.

FISA is controversial in itself. The act is supposed to be used to justify surveillance on foreign targets. But as Reason's Scott Shackford has explained, intelligence agencies often use it to secretly spy on American citizens, sometimes without a warrant.

According to the newly released documents, obtaining permission to surveil members of the media is not easy, but it is possible. In one memo, dated March 19, Holder says FISA applications against journalists must be approved by the attorney general and deputy attorney general prior to being brought before a FISA court.

In the other memo, dated January 8, the deputy attorney general writes that "the Attorney General and the Deputy Attorney General shall retain discretion to refer such FISA applications to the Assistant Attorney General for the National Security Division for Disposition."

Both memos were obtained in a Freedom of Information Act (FOIA) lawsuit brought against multiple federal agencies by a pair of press freedom groups: the Freedom of the Press Foundation and the Knight First Amendment Institute at Columbia University. The lawsuit originally sought answers regarding the Trump administration's war on leaks.

Berkeley law professor Jim Dempsey, a former member of the Privacy and Civil Liberties Oversight Board (an independent agency within the executive branch), claims that the information contained in the memos is "a recognition that monitoring journalists poses special concerns and requires higher approval." Dempsey tells The Intercept he sees the rules "as a positive, and something that the media should welcome."

Patrick Eddington, a policy analyst in homeland security and civil liberties at the Cato Institute, disagrees. "If the government wants to conduct surveillance of any American for alleged criminal conduct, they should have to obtain a probable cause-based warrant from a federal judge, exactly as the Fourth Amendment requires," Eddington tells Reason. "These guidelines," he adds, "degrade that Fourth Amendment standard to the point of making it meaningless."

On top of that, we don't know whether the guidelines are being violated. Past audits of the Department of Justice "have routinely shown violations of the law," Eddington says, so "we have no reason to believe these guidelines have not been similarly ignored or abused."

While the memos date to the Obama era, the Trump administration seems willing to snoop on journalists as well. Earlier this year, the Justice Department demanded the phone and email records of New York Times reporter Ali Watkins in an attempt to find out whether her source, a former Senate aide, had leaked classified information.

Eddington suspects the guidelines for spying on journalists under President Donald Trump may be "looser" than they were under Obama, especially given Trump's "almost daily stated antipathy towards the press as a whole."

Regardless of who's in the White House, one constant remains: The federal government doesn't seem to have any problems with going after journalists.

Photo Credit: YURI GRIPAS/REUTERS/Newscom

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  • Cy||

    The official Federal Guidelines concerning US Citizens: FYTW!

  • Rich||

    On top of that, we don't know whether the guidelines are being violated.

    Good Lord, how bad can this get?!

  • MatthewSlyfield||

    You just had to say that! Now it's going to get even worse! :P

  • Red Tony||

    Jeez, how good can this get?

  • Fist of Etiquette||

    "These guidelines," he adds, "degrade that Fourth Amendment standard to the point of making it meaningless."

    BUT WE HAVE A MEMO TO COVER IT. The attorney general will honor his constitutional oath and protect Fourth Amendment rights. It's all on the up and up.

    Also, journalists are special.

  • Furzeydown||

    'Also, journalists are special'

    That's what stood out to me. At least they believe they are, and that this garbage doesn't get rubber stamped all the time presently. As soon as they stop parroting what they're told to, they tend to find out how 'special' they actually are.

  • John||

    me too. If you want to debate FISA, we should. But don't come whining to me that FISA is being used on journalists and expect me to give a shit.

  • C. S. P. Schofield||

    Journalists lost any social status, so far as I am concerned, when they began to pretend to be unbiased while remaining the same old partisan hacks they always have been.

  • Rat on a train||

    If the government can murder citizens because the President has thought about it deeply, why can't it conduct warrantless surveillance as long as the Attorney General thinks deeply?

  • damikesc||

    One group that won't give two shits about this?

    Reporters.

    Regardless of who's in the White House, one constant remains: The federal government doesn't seem to have any problems with going after journalists.

    What journalists has Trump gone after, out of curiosity?

  • Cy||

    Stormy Daniels has produced a lot of media!

  • loveconstitution1789||

    I produce a bunch of media in my large intestine.

  • damikesc||

    Oh a higher qulity than CNN to boot.

  • Uncle Jay||

    ...and a lot of semen.

  • Last of the Shitlords||

    Stormy Daniels has been producing lots of media for the last 15 years. I like her older sruff better. Although she should have done a few DPs.

  • MoreFreedom||

    As the article states, Ali Watkins.

    But there's a big difference between Obama and Trump that Seyton misses. Obama spied on journalists who were writing stories exposing corruption in his administration, to find out who was leaking to them. Spying on Rosen led to an indictment and conviction of of Stephen Jin-Woo Kim, a State Dept. contractor. As Andrew Napolitano commented: "This is the first time that the federal government has moved to this level of taking ordinary, reasonable, traditional, lawful reporter skills and claiming they constitute criminal behavior."

    Trump's administration first determined that Ali Watkins much older lover James Wolfe, a long time aid for the Senate Intelligence Committee, was leaking classified information. Then they went after Ali's records to find out if he was leaking to her. And unlike Rosen who was named as a criminal co-conspirator by the Justice Dept, Trump didn't bring charges or name her as a criminal co-conspirator.

    Obama spied on journalists to find government leakers, Trump hasn't.

  • Colossal Douchebag||

    Meet the old boss, same as the new boss

  • JesseAz||

    When did the new boss spy on journalists?

  • BYODB||

    But you must have missed the part where the author compares theoretical bad things to actual bad things, then makes the case that the theoretical bad things might even be worse than the actual bad things!

    We have entered a time when the not-real carries more weight than the real. Maybe this is the end-game of every culture that reaches a point where wants become more important than needs, because all the needs are taken care of for you.

    Cultural Antoinette Syndrome?

  • Walk_on_Walter||

    "We have entered a time when the not-real carries more weight than the real."

    Only when the hypoethetical might be committed by a con and the real is actually being committed by lib.

  • loveconstitution1789||

    -1 for Obama

    -1 for reporters who will still kiss Obama's ass over this blatant violation of the Constitution

  • loveconstitution1789||

    Regardless of who's in the White House, one constant remains: The federal government doesn't seem to have any problems with going after journalists.

    The media spins the actual misdeeds of past presidents with Trump's request for source info.

    Same-same

  • Homple||

    The Obama administration's behavior was Troubling and Not OK, but to be fair, Trump is probably worse.

  • Uncle Adolf's Gas and Grill||

    You left out Problematic.

  • Ecoli||

    and... "to be sure"

  • Homple||

    Thanks, Uncle and Ecoli for correcting my omissions.

  • ||

    So what? Obama is going around yapping on about democracy and yet he undermined it. He was the classiest, smartest President ever who wouldn't break the law.

    He was a myth.

  • Jerryskids||

    Yes, it's bad enough when the government spies on citizens but when they go after Members of the Press as if they were mere citizens as well, that crosses the line from criminality to blasphemy.

  • Brett Bellmore||

    Bingo. Journalists are just citizens who professionally exercise rights all of us have. (Though they try to pretend otherwise.)

    If you can spy on Americans, you can spy on American journalists. It isn't even a close question.

  • loveconstitution1789||

    +1

  • Derp-o-Matic 6000||

    Careful, Brett, you'll make Jim Acosta cry.

  • Duke of url||

    Who went to prison over the unconstitutional surveillance of James Rosen again?

  • Scarecrow Repair & Chippering||

    James Rosen didn't. Ain't that grand?

  • WhatAboutBob||

    Eddington suspects the guidelines for spying on journalists under President Donald Trump may be "looser" than they were under Obama, especially given Trump's "almost daily stated antipathy towards the press as a whole."

    So pure speculation by one guy so Reason goes with "It was bad under Obama but it's probably going to be worse under Trump!"

  • NotAnotherSkippy||

    Look, this is totally credible because reasons.

  • NotAnotherSkippy||

    But remember kids, just because we don't have a smoking gun doesn't mean an investigation isn't warranted. In fact it should be welcomed because this is the only way to prove they did nothing wrong.

  • BYODB||

    That's for the link, it was great being reminded of what a jackass Scott Shackford can be.

  • Rich||

    The federal government doesn't seem to have any problems with going after journalists.

    Hey, if you have nothing to hide you have nothing to fear!

    Wait. What was the question?

  • TrickyVic (old school)||

    ""Hey, if you have nothing to hide you have nothing to fear!"'

    Funny how some of the same people in government that say that, are not condemning bringing information into the light.

    I believe they do fear misusing FISA. Anytime an entity wants to X, but can't because people will find out, will quickly move to doing X once it's moved into secrecy. X can usually be defined as misusing power to screw someone over.

    Hell, even Chuck Schumer is afraid of the deep state. He tried warning Trump that if you mess with them they can screw you six ways to Sunday.

  • Dillinger||

    >>>Privacy and Civil Liberties Oversight Board

    privacy and liberty AND oversight wtf?

  • Rich||

    "PC LOB" wtf?

  • John||

    While the memos date to the Obama era, the Trump administration seems willing to snoop on journalists as well. Earlier this year, the Justice Department demanded the phone and email records of New York Times reporter Ali Watkins in an attempt to find out whether her source, a former Senate aide, had leaked classified information.

    Leaking classified information is a federal crime. Watkins' email and phone records are potentially evidence of that crime. DOJ has every right to ask for those. And if you don't understand why, consider that they could also be exculpatory. Suppose the aid had been innocent and hadn't leaked anything. Those records would have gone a long ways towards showing that. Shouldn't the guy have a right to subpoena those records to help prove his innocence? He sure as hell does. And if he has a right to get them to prove his innocence, the government has a right to get them to prove his guilt.

    Spying on reporters is just that, spying. It is not getting a lawful subpoena for evidence in a criminal matter. I understand Joe is 12 and likely doesn't know much but I would think even your typical Reason millennial hate studies major would understand that.

  • Rich||

    hate studies major

    Nice band name.

  • John||

    Their debut album could be Get Woke and Go Broke

  • Unicorn Abattoir||

    Of course there'd be no vocals, so as not to trigger anyone.

  • John||

    Berkeley law professor Jim Dempsey, a former member of the Privacy and Civil Liberties Oversight Board (an independent agency within the executive branch), claims that the information contained in the memos is "a recognition that monitoring journalists poses special concerns and requires higher approval."

    There is your problem. There is nothing special about journalists that makes them above the law or protected from government scrutiny in ways every other person is not. The problem here if there is one is FISA. The fact that it was used on journalists as opposed to skydivers or Indian Chiefs is of no relevance or concern. Journalism is a trade. There is nothing special about it. It is just a low rent trade performed by idiot sons and daughters of the wealthy and others who are too stupid to do anything else. Get over yourself.

  • Rich||

    Indeed. "There's a seeker born every minute."

  • Rev. Arthur L. Kirkland||

    Half-educated, disaffected, stale-thinking right-wing bigots are among my favorite faux libertarians.

  • John||

    That is because you are a moron. You should work on that.

  • JesseAz||

    So now conservatives are bigots for disparaging the ignorance of journalists?

  • DesigNate||

    John has never claimed to be a libertarian. And I don't always agree with him, but nothing he said in that post should be controversial to anyone but a brain dead, piece of shit, leftist bigot.

  • Walk_on_Walter||

    I'd be willing to bet your favorite faux libertarians are horses' cocks being shoved up your ass. Alternately, it may be a small child ties up in your basement. But definitely one of the two.

  • ||

    I feel that I am about 99% a libertarian. The 1% that I disagree (and it's a big !%) are articles like this one. In this country you have the freedom of press, that right does not make it a case for you to break the law.

    On the other hand, I wanted to teach High School Mathematics, however, due to my numerous "black" kills in the military, the entire school district did not want to hire me. That the "reason" I am here. Not for BS gun or whatever else that is on this site, trust me, most of you guys talking about gun rights, will never shot your gun, however, your wife will.

  • John||

    I think you mean never shoot your gun in anger. Most people on here likely target shoot at least a little. That said, having once fired a gun in anger, I am totally fine with the prospect of never doing so again. Shooting people is messy and unless you are in combat create lots of paperwork and sometimes still do even then.

  • loveconstitution1789||

    Uh... if they are 'black' kills how does anyone know about them?

    No real specifics are listed on your DD214, so nobody would ever find out specifics about what you actually did in the military unless you told people.

  • grouser||

    They don't. He was lying.

  • loveconstitution1789||

    I gotta stop being so diplomatic.

    You are correct and quicker about it.

  • ||

    Yeah, I got the distinct impression Bill took some time off from yelling at people in the park to grace us with his presence.

  • loveconstitution1789||

    Nice!

  • Walk_on_Walter||

    Hahaha! And by "people" you mean "pigeons" because the pigeons keep trying to give him messages from his handlers and he's quit being a secret agent.

  • grouser||

    No offense, but I don't believe anything you said, at least the part that was coherent.

  • Brett Bellmore||

    This article isn't a good reason to decide you're not a libertarian. A lot of what gets published at Reason these days isn't actually representative of Libertarian thought. The "march through the institutions" is nearly complete here.

    Liberty might be better in that regard.

  • Walk_on_Walter||

    "A lot of what gets published at Reason these days isn't actually representative of Libertarian thought."

    Truth!

    And actually you could just leave out the word "libertarian" and be right on target as well.

  • DesigNate||

    Freedom of the Press didn't set up some cleric class that are the only ones allowed to produce and disseminate the news you fucking retard.

    We all have the freedom of the press. Every. Single. One. Of. Us.

  • Sevo||

    Billinsandiego|9.18.18 @ 1:14PM|#
    "I feel that I am about 99% a libertarian."

    Sock for:
    Hihn
    That Rev asshole
    Turd

  • loveconstitution1789||

    Thanks. Too suspicious a post to let fly.

  • tlapp||

    I have no doubt the FISA court has been abused for years even decades. This memo, the nonsense about leaked news confirming a bogus dossier all protected by classified status. They have found their work around to the constitution and can spy on anyone for any reason.

    Where do we get a special council to investigate that process and someone not in concert to cover up the findings?

  • Mickey Rat||

    So you have hard evidence of what the Obama DOJ under Holder authorized but the contention that the standards are looser under Trump is because you think he is the sort of guy who would make the standards looser? Got it.

  • loveconstitution1789||

    To Reason, Trump tweeting it or asking for something that might be protected by 1A, is the same as Obama's of the world actually violating the Constitution over and over.

  • DiegoF||

    Eddington you are a fucking fool. At least Dempsey is evil but smart.

  • Ecoli||

    Reporters and copy editors are suddenly suspicious of FISA. Shocked!

  • Derp-o-Matic 6000||

    WILL TRUMP'S WAR ON THE FIRST AMENDMENT NEVER CEASE?!

    Wait, who is Eric Holder, again?

  • Sevo||

    "...On top of that, we don't know whether the guidelines are being violated...."

    I'm not absolutely certain the dawn is going to happen in the east tomorrow, either.

  • Uncle Jay||

    Oh, good.
    Republicans and democrats wiping their ass with the US Constitution again.
    For a moment there, I thought I lived in a free country.
    That's a relief.

  • Mark22||

    Republicans and democrats wiping their ass with the US Constitution again. For a moment there, I thought I lived in a free country.

    The depressing thing is that it's worse pretty much everywhere else, and there people don't know and wouldn't care even if they did.

    In the US, there are at least some voices of outrage.

  • majil||

    So, Trump is up front and says out loud "I am going to go to court and get your notes " and he is worse than Obama who used FISA because, well, he is Trump ?
    I expect this kind of nonsense from Huffpost.

  • Rockabilly||

    Only the pure democrats can do anything to anyone.

  • Fred G. Sanford||

    "Eddington suspects the guidelines for spying on journalists under President Donald Trump may be 'looser' than they were under Obama, especially given Trump's 'almost daily stated antipathy towards the press as a whole."

    Understatement of the year.

  • Last of the Shitlords||

    Trump's antipathy is greatly understated, relative to the shrill partisan vitriol he is subjected to by the precious media. In context, I consider his attitude towards the media to be restrained.

    Many of these organizations and the people who work for the, are unabashedly working tirelessly to undo the 2016 election and under,one everything he does as Commander in Chief. We're i in his position, there would be a far more vicious AG that would be tirelessly destroying any of these Marxist subversives that dared venture into the real, of sedition.

  • John C. Randolph||

    I consider his attitude towards the media to be restrained.

    He calls them fakes and hypocrites, and they call him Hitler. Yeah, he's soft-pedaling it.

    -jcr

  • No Yards Penalty||

    Eddington ''suspects.''

    Reason has jumped the shark.

  • Hand Surgeon Houston US||

    Sure that if you don't understand why, consider that they could also be exculpatory. Suppose the aid had been innocent and hadn't leaked anything.

  • vek||

    On the one hand, we don't want or need a police state, and most people should not ever have their privacy violated by the government. On the other hand, there are really foreign spies, people committing treason, trying to undermine the government for nefarious purposes, leaking classified info with no GOOD or well intended reason, etc. Journalists are not magical unicorns, and should be subject to being investigated for legitimate reasons like the above.

    If there is anything to bitch about, it is merely the due process aspects here. If a journalist is trying to illegally obtain classified info, I dunno like our nuclear missile designs, should the government NOT be allowed to wire tap/etc them??? I mean if they can do it for mobsters, why not people trying to leak classified info? Not ALL classified info should be such, and not all leaks are bad, but it's still the governments job to prevent this stuff when they can.

    FISA and it's shadowy process is the main problem here, not that journalists might sometimes have warrants issued for legit reasons. Doing it for entirely political reasons, like somebody not suspected of any illegal/wrong activity, but merely who is critical of policy, would be an entirely separate beast of course.

  • Brett Bellmore||

    There's two real problems here, and the bigger one keeps getting buried.

    The smaller problem is that the FISA court is a rubber stamp, has been since its origins.

    The bigger problem? They don't wait on the warrant to do the spying. They spy on everybody, all the time, and get the warrant only if they think they might want to use the results in a court.

    I mean, seriously, you think the NSA is filling up one server farm after another with intercepts based only on FISA warrants? They've vacuuming up EVERYTHING electronic, and storing it in searchable form.

  • vek||

    All very true. Both of those problems need to be addressed. Stopping the snooping in advance of warrants of any kind is obviously the more important of the two, but the FISA process definitely needs to be reworked too, because we DO have to have a legal mechanism for them snooping when it is actually warranted.

    The obvious answer is through the normal courts... But I do get the arguments that espionage etc is a bit of a weird area in terms of criminal law, and evidence needing to be presented to gain warrants through regular courts might be classified, which does create issues. Something like FISA, but less rubber stampy, might be as good as it gets.

  • Mark22||

    Candidate Obama:

    This Administration also puts forward a false choice between the liberties we cherish and the security we provide. I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom. That means no more illegal wire-tapping of American citizens; no more national security letters to spy on citizens who are not suspected of a crime; no more tracking citizens who do nothing more than protest a misguided war; no more ignoring the law when it is inconvenient.

    Of course, it all turned out to be one big, fat lie.

  • John C. Randolph||

    We already knew he was a piece of shit, and fucking stupid to boot, but putting this shit in writing? WTF?

    -jcr

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