Seizure of AP phone records: An affront to a free press

Tuesday, May 14, 2013

What The Associated Press calls “a massive and unprecedented intrusion by the Department of Justice”(DOJ) into its news gathering activities is more than an affront to a free press — it’s a direct challenge.

If the seizure of telephone records from offices and personal lines is as broad and unfocused as AP CEO Gary Pruitt describes, the DOJ move to seize records of calls made from offices and personal phones of AP journalists marks a new and threatening move by an administration already facing  reports that the IRS has targeted groups simply for educating others about the Constitution and Bill of Rights, and a record of the most prosecutions ever of government employees over leaks to the press, under the nearly-100 year old Espionage Act.

The nation’s founders provided  strong protection for a free press in the form of the First Amendment to guarantee a free flow of news and information from a source not licensed or controlled by the government.

According to Pruitt, records were seized of more than 20 phone lines used mostly in New York and Washington, D.C., and some home phone records for AP staff, for a two-month period early last year. Potentially, as many as 100 AP journalists may have used those lines in newsgathering activities.

“These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know,” Pruitt said in a letter to Attorney General Eric Holder.

Even if focused later on a very specific reason, such as a dire and immediate threat to national security, the breadth of the seizure will have a chilling effect on the ability of reporters to gather information from regular and confidential sources on any variety of stories, not just one report.

One possible reason for the seizure: A May 7, 2012 AP story about a foiled terror plot, including details of a CIA operation in Yemen, which used information from a confidential source. The Justice Department has announced an investigation to locate that source.

An inescapable, even if unintended effect of such a seizure – and one reason such actions are so rare – is that it, in effect, turns the news media’s very news gathering process into another investigative tool of the government. Reporters become effectively recorders of contacts and information for the prosecution, not at all what journalism is supposed to be.

The DOJ has crafted over the years a careful policy with regard to the press and such seizures of records. In effect, it’s a final option when others have failed, to be approved only at the highest levels including the Attorney General.  Very often in past years, there has been a negotiation in advance to narrow the scope of such an inquiry, and an opportunity for the news operation to raise a legal challenge.

What’s disturbing, at least as indicated by Pruitt, is that there has been no disclosure to AP or the public of any of those justifications, no advance warning or negotiation, no opportunity to raise an objection before a judge.  The DOJ response thus far has been only a restatement of the policy, which seems tepid and well short of good disclosure to the American public regarding what may well be pursuit of past transgressions.

In effect, Justice officials have told the nation’s journalists to rely on DOJ’s judgement. James Madison would likely have just chuckled at that notion.

The nation’s founders insulated a free press against government control and harassment even in their period of an ardently combative and partisan press. They had experience with press licensing and government attempts to rule over it — and decided against that circumstance.

For an administration that has cloaked itself in a self-proclaimed mission to become the most transparent, open government to-date, such a wide, secret dragnet aimed at a huge number of journalists seems contradictory – even predatory.

Yes, gains in public access to records have been recorded.  But some scientific groups and others note access to experts to interpret such information is guarded or unavailable without special “minders” to oversee interviews.

Though the White House pledged to protect whistleblowers who work within government channels, Holder has prosecuted six government employees for alleged leaks under the World War I-era Espionage Act than all previous attorneys’ general.

The American Civil Liberties Union reported in 2012 a “huge increase” in the use of warrantless wiretap surveillance by the Obama administration –the mirror action of seizure of AP phone records.

The government has a right, when it comes to leaks and national security, to police its own house.

But we all – not just journalists – should be concerned when that effort spills over so broadly into the inner workings of a free press.

Tags: , , ,