Finally, an issue Republicans and Democrats can agree on: The Justice Department went too far in secretly obtaining phone records from The Associated Press that covered parts of two months and more than 20 separate lines.
The department says it needs the records to investigate how AP uncovered a story about a foiled terrorist bomb plot in Yemen. And White House press secretary Jay Carney was correct in saying “a balance needs to be struck” between two competing interests: the country’s right to know and its right to be safe.
But on this one, the Obama administration lost its balance and crash-landed.
Here’s Michael Steel, a spokesman for Washington’s top Republican, House Speaker John Boehner: “The First Amendment is first for a reason. If the Obama administration is going after reporters’ phone records, they better have a damned good explanation.”
And here’s Sen. Pat Leahy, the Vermont Democrat who heads the Judiciary Committee: “The burden is always on the government when they go after private information, especially information regarding the press or its confidential sources. ... I am concerned that the government may not have met that burden. I am very troubled by these allegations and want to hear the government’s explanation.”
This bipartisan outrage is totally justified. The role of the press as a watchdog and whistle-blower is more vital than ever. The White House has a rapidly growing ability to bypass the media filter and communicate directly with the public. This White House has raised that power to a whole new level by creating what might be called the OBN, the Obama Broadcasting Network, which uses a combination of tweets, texts, Instagram, Pinterest and Facebook to feed favorable information to its supporters.
That’s a positive trend when it engages citizens more deeply in the democratic process. But it has a downside. Direct communication is not scrutinized and not accountable. Questions go unasked, facts unchecked, biases unrevealed.
It falls to independent journalists to do that asking, checking and revealing. In order to perform that role, they sometimes have to rely on anonymous sources who fear retribution if their identities are disclosed. And a Justice Department that raids reporters’ phone records on such a massive scale can poison and paralyze that whole process.
News organizations are under tremendous financial pressures these days, and investigative reporting is extremely expensive. The AP, a nonprofit cooperative owned by other news outlets, still has the resources to maintain a robust investigative staff. An attack on them is an attack on all journalists everywhere.
Steven Aftergood, an expert on government secrecy at the Federation of American Scientists, is absolutely right in calling the AP case “an astonishing assault on core values of our society.”
That assault is part of a pernicious pattern. In our entire history, before Obama became president, there were only three cases of an American government prosecuting a source for disclosing classified information. Since he took office, there have been six cases and more investigations are under way.
News organizations have a profound obligation to take national security seriously, and most of them do — consulting regularly with military and intelligence agencies and even withholding information when those agencies can make a compelling case for the dangers of disclosure.
In fact, AP did exactly that on the Yemen story. By its own account, AP delayed publication of the story when government officials said it would “jeopardize national security” and only released it after those “concerns were allayed.”
But that still wasn’t good enough for the Justice Department. They went after AP anyway, and in the process might well have violated their own guidelines. Those guidelines say that subpoenas can only be issued in extraordinary circumstances — when a clear crime has been committed and the government cannot obtain evidence of that crime in any other way. Even then, subpoenas are supposed to be drafted “as narrowly ... as possible,” and news organizations are generally told in advance, so they can negotiate a deal or challenge the summons in court.
None of that happened here. The subpoenas are extremely broad, and they were issued in secret, preventing AP from challenging them until they had already been executed.
In 49 states, journalists are largely protected by “shield laws” that limit government’s investigative power. But there is no federal shield law, and as this case demonstrates, there should be.
Governments have a right, and an obligation, to safeguard national security. They do not have a right to intimidate journalists who are trying to hold them accountable for their actions.