Please ensure Javascript is enabled for purposes of website accessibility

Editorial Advisory Board: Collateral damage in the war on leaks

There is a “war on leaks” being waged by the U.S. Department of Justice and it’s generating serious collateral damage to the freedom of the American press to gather and report the news. Revelations that DOJ secretly subpoenaed the telephone records of The Associated Press (AP) and executed a search warrant for email communications between a Fox News reporter and his source are more than chilling; they threaten precious First Amendment values.

In the AP case, the phone records were subpoenaed from AP’s New York City headquarters and other offices in Hartford, Conn., and Washington, D.C.

AP was given no advance notice of the Justice Department subpoena, which involved as many as 20 telephone lines and perhaps more than 100 AP journalists. The subpoena was directed to phone records going back to April and May 2012, giving the government access to records of many thousands of telephone calls, presumably including information about AP journalists’ sources that would be legally privileged under many state shield laws, including Maryland’s, which was enacted over 100 years ago as the nation’s first.

The subpoena apparently dealt with a May 7, 2012, story about a Central Intelligence Agency covert operation in Yemen to foil a plot to blow up an airliner on the anniversary of Osama bin Laden’s assassination. Attorney General Eric Holder defended the subpoena, stating that the story was among the top two or three most serious leaks that he had ever seen. “It put the American people at risk,” he said, “and that is not hyperbole.”

However, AP’s President and Chief Executive Officer, Gary Pruitt, released a statement asserting that AP had held the story while the White House was preparing to publicly announce that the bomb plot had been foiled.

He added, “There can be no possible justification for such an overbroad collection of the telephone communications of the Associated Press and its reporters. … These records 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.” It now knows, and the case is continuing.

In the Fox News search warrant case, reporter James Rosen, though never charged with a crime, was accused in the DOJ affidavit of acting “at the very least, either as aider, abettor and/or co-conspirator” with a government leaker known to the government. The government’s glib explanation — that there is a difference between an affidavit alleging probable cause and a formal charge — not only insults our intelligence but also criminalizes routine newsgathering methods. And its invocation of the Espionage Act to justify the warrant, notwithstanding the Privacy Protection Act of 1980 which sharply limits such measures, recalls the suppression of free speech on national security grounds in the run-up to World War I.

This assault on the press, in violation of long-standing DOJ policies and quite possibly federal law, means that no newsgathering organization is beyond the reach of a search warrant or secret subpoena to force the disclosure of confidential sources when national security is asserted as the basis. Journalists can be called to testify against their government sources, and sooner or later, they — and we — won’t have any sources. Under the laws of many states, a journalist cannot be compelled to disclose his source except under limited conditions. This is not the case under federal law.

We join the Reporters Committee for Freedom of the Press, the Society of Professional Journalists, and other organizations in calling for a federal shield law to protect journalists and their sources from government interference with their newsgathering activities. President Obama has signaled a change in the administration’s position and now supports a federal statutory shield law.

The president had campaigned for such a bill in 2008 and supported the bill that passed the House in April 2009. Then, abruptly, in October 2009, President Obama withdrew his support for the legislation unless it was changed to accommodate heightened national security concerns.

Many in the press (which has never been unanimous on the shield law issue) condemned the administration’s proposed changes, but in November 2009, negotiators from the press, the White House and the Senate reached a compromise of sorts and the Senate Judiciary Committee reported out a bill. It was widely assumed that a bill would be enacted in 2010, but in July, the massive WikiLeaks disclosures caused many in Congress to rethink the bill and the momentum behind it collapsed.

What a shield should do

New federal shield law bills have now been introduced by Sen. Charles Schumer, D-N.Y. (S.987) and Rep. Ted Poe, R-Texas (H.R.1962). The bills are different, but unlike most state shield laws, both provide more than a testimonial privilege for journalists. Both address the issues involved in the AP and Fox News cases, where reporters’ telephone records and email communications were seized from the companies that provided those services. The Senate bill is far more detailed, particularly on national security matters, but appears to protect a broader range of journalistic activities.

It is too early to endorse one bill or the other — if any bill is enacted this year or next, it will likely be much changed from the bills we have now. It is not too early, however, to endorse a few general principles: The privilege should extend to everyone engaged in journalism, whatever their status or occupation; search warrants and secret subpoenas must never be used, directly or indirectly, to ferret out journalists’ sources; any subpoena targeting journalists must only be used as a last resort, after all else has failed, and then only under the most extraordinary circumstances; and federal judges must have the authority to balance, without deference to the executive branch, national security interests against the public’s right to know what their government is up to.

Surely there are more issues that deserve and require careful exploration and debate by the federal lawmakers. We urge them to do so. The end result should eliminate the possibility of prosecuting a journalist who publishes a government official’s response to routine newsgathering questions.

Editorial Advisory Board members Elizabeth Kameen, William Reynolds and H. Mark Stichel did not participate in this opinion. 

Editorial Advisory Board

James B. Astrachan, Chair

John Bainbridge

Wesley D. Blakeslee

Eric Easton

Arthur F. Fergenson

Elizabeth Kameen

Michelle Lipkowitz

C. William Michaels

William Reynolds

Norman Smith

H. Mark Stichel

Ferrier R. Stillman

Christopher West