Under Project 2025, Journalists and Sources Will Face Spying and Prosecution – Truthout

The past two decades have been a terrible time for the right to freedom of the press in the U.S. Successive administrations—on both sides—normalized the use of the Espionage Act to go after whistleblowers and journalist sources. In June, the Department of Justice (DOJ) secured a conviction for WikiLeaks founder Julian Assange under the Espionage Act. In doing so, they accomplished something once thought unthinkable: the successful criminalization of routine news-gathering activities long thought to be protected by the First Amendment. This criminalization of journalism has not surprisingly been accompanied by increased surveillance of journalists. And if the right-wing think tank Heritage Foundation gets its way, tracking journalists and prosecuting their sources will become much easier.

In 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 the tools at its disposal to investigate the leaks.” Although Donald Trump has sought to publicly distance himself from Project 2025 in recent weeks, he has close ties to at least 140 of the people who helped craft it, and has previously praised the Heritage Foundation’s work on Project 2025, which raising concerns that he may seek to implement many of his proposals if elected.

To achieve Project 2025’s stated goal of having the Justice Department use “every tool at its disposal” against whistleblowing, 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 hiring of additional counterintelligence and security personnel” to help track down journalists’ sources so that sources can be prosecuted.

The Heritage Foundation justifies this crackdown on journalists and whistleblowers, saying that intelligence “personnel have sufficient access to legitimate whistleblower claims under the protections provided by inspectors general and Congress.” But as Mike German, an FBI whistleblower and fellow at the Brennan Center for Justice’s Freedom and National Security Program, told me, “Protections for FBI and intelligence agency officials against whistleblowers are inadequate and rarely prevent reprisals because what people often choose to reveal about government waste, fraud and abuse to the media. This is often the only effective way to alert the public to illegal government activities.

DOJ News Media Policy

On October 26, 2022, Attorney General Merrick Garland introduced a revised policy limiting when the Justice Department can obtain communications records of journalists or compel them to testify. The move came in response to revelations that the Trump administration sought email records of four reporters in the New York Timesand successfully seized the phone records of three reporters in the The Washington Post, and telephone and email records from a CNN reporter. All of these seizures were part of investigations into leaks of classified information. Initially, the Biden administration continued the Trump administration’s legal battle to obtain the times the reporters’ emails and placed the paper under a gag order to prevent them from revealing the legal battle, 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 journalists’ communications, just records of who they contacted to do damage. For six years, the Obama administration tried to force James Risen, then-at New York Timesto name the source of his revelations about a failed CIA covert operation against Iran. Attorney General Eric Holder went so far as to threaten Risen with prison if he did not reveal his source to prosecutors. Embarrassed by the widespread outrage, Holder backed down in 2014. But the Justice Department continued to pursue the accused source, Jeffrey Sterling. (Full disclosure: Jeffrey Sterling is a member of the board of directors of Defending Rights & Dissent.)

The government’s case against Sterling consisted mainly of the fact that the phone records showed that Sterling spoke to Risen. Sterling had plenty of reasons to talk to Risen other than to reveal secret covert action. Sterling sued the CIA for racial discrimination, and Risen covered the case. Sterling maintains his innocence and is taking the case to court. But jurors convicted Sterling based on phone records alone and sentenced him to three and a half years in prison. Reporters Without Boring condemned the sentence, saying: “Sterling is now in prison just for talking to a journalist on a regular basis.”

This is exactly the pursuit of the authors of Project 2025 I hope to make it easy. Although such prosecutions are aided by the seizure of journalists’ files, they are ultimately made possible by the Espionage Act and the treatment of whistleblowers as threats to counterintelligence.

The Counterintelligence and Espionage Act

c Project 2025, the Heritage Foundation is not only calling for the repeal of protections against spying on journalists. They want to expand the counterintelligence apparatus so that there are more agents working to identify and pursue journalists’ sources.

At first glance, the task of counterintelligence — which has traditionally focused on enemy foreign agents — to identify journalists’ sources may seem odd. Unfortunately, this is now the norm. Because media leaks of “national defense information” are governed by the outdated and undemocratic Espionage Act, the FBI’s counterintelligence division has jurisdiction to investigate media leaks. Indeed, in the FBI’s website description of its counterintelligence program, it lists protecting “secrets of the US intelligence community” above countering foreign spies or stopping the spread of weapons of mass destruction on its list of priorities. The list is not ranked, but its order certainly provides a window into the FBI’s priorities.

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

As German said truth “Using counterintelligence agencies to investigate these reports is an affront to the First Amendment and democratic principles. American journalists are not spies, and the public has a right to know when our law enforcement and intelligence agencies are acting illegally or ineffectively. Limits on the government’s power to investigate journalists should be strengthened, not weakened.

If Trump wins the presidency and implements the proposals outlined in Project 2025, he and the intelligence community are likely to lift restrictions on when they can spy on journalists — and expand one of the most dangerous aspects of the intelligence community so they can increase surveillance to the media.

Resistance to attacks on freedom of the press

The best way to counter Project 2025’s attacks on press freedom is for Congress to take affirmative steps to protect a free press. The House of Representatives unanimously passed the Protecting Reporters from State Espionage (PRESS) Act, but it remains stalled in the Senate. Under the PRESS Act, journalists will be protected from revealing their sources and their communications cannot be subpoenaed to find their source. While a Trump-appointed attorney general can change Justice Department policy with the stroke of a pen, a law passed by Congress can only be overturned by Congress.

However, passing the Press Act is not enough. Congress should reform the Espionage Act so that it does not apply to journalists or government officials who alert the media to real abuses of power. Taking away the government’s ability to arrest whistleblowers removes one of the main legal justifications for surveilling journalists to find their sources. Congress should limit the broad national security powers of the FBI and other agencies by making clear that when First Amendment rights are threatened, surveillance is not permissible absent suspicion of a crime — and that journalism is not a crime.

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

Garland’s modest limitations are vital on defense. There are many in the intelligence community and their bipartisan enablers who would like to see them repealed. And while those powers are dangerous no matter who is president, the dangers are heightened under a potential Trump administration. Trump’s personal distaste for the press is well known, and in a second term he appears poised to escalate legal attacks on the media. Project 2025’s own attacks on press freedom provide one blueprint for this.