By Corey Friedman
Federal prosecutors added reporters and editors to the list of people whose phone calls merit monitoring when they covertly seized two months of call records from Associated Press phone lines. President Barack Obama’s Justice Department sought the records while investigating a leak about a planned terror attack in Yemen.
If all prosecutors wanted to accomplish was figure out who leaked classified information to the nation’s largest news agency, their time and effort would have been better spent poring over the federal employees’ phone records. If the leak constitutes a crime, it would stand to reason that investigators should target those who broke the law.
The Justice Department’s data grab shows mistrust and suspicion of journalists rather than an earnest desire to solve a crime. It also betrays — at best — staggering ignorance of the First Amendment. At worst, it shows a willful disregard for journalists’ right to gather and publish news without government interference.
If the officials who spilled the beans about the Yemen terror plot violated military or civilian law, prosecutors are within their rights to investigate their activities until they can show probable cause to file criminal charges. But that investigation should center on the suspected lawbreakers — not journalists who did nothing wrong.
A robust body of First Amendment case law, including the 1971 Supreme Court ruling that the government couldn’t stop the New York Times from publishing the Pentagon Papers, holds that the news media is free to publish classified information so long as journalists obtained it lawfully.
If a bureaucrat with a high security clearance picks up the phone, dials the newspaper and gabs to a reporter about top-secret goings-on, he or she may be flagrantly violating federal law or agency policy.
But the journalist who diligently and accurately reports that information has broken no law. Publishing state secrets may prompt policy changes and send politicians scrambling for cover, but it’s the divulging of that information by those entrusted with it that prosecutors should concern themselves with.
While their conduct may sometimes break the law, whistleblowers are seldom the villains in these high-level leaks. When soldiers or diplomats or federal agents commit some state-sanctioned sin, witnesses often conclude that releasing the information is in the American public’s best interest.
There’s statute, and then there’s conscience. On select occasions, making the choice to consciously break the law for the greater good can be the right thing to do.
The phone record seizure is a black mark on Obama’s administration, and it comes early in his second term. Backpedaling, the president has proposed a media shield law that beefs up protections for journalists who protect the identities of confidential sources.
A shield law is long overdue, but four U.S. congressmen have proposed a law that shields all American citizens from the Justice Department’s warrantless witch hunts. Two Republican and two Democratic House members are sponsoring H.R. 2014, the Telephone Records Protection Act, which would require government agencies to obtain a court order before they could examine phone records.
“The Justice Department’s seizure of the AP’s phone records — likely without the sign-off of a single judge — raises serious First and Fourth Amendment concerns,” sponsor Justin Amash, R-Mich., said in a statement. “Regardless of whether DOJ violates the legitimate privacy expectations of reporters or ordinary Americans, we deserve to know that the federal government can’t seize our records without judicial review.”
Lawmakers should pass both the shield law and the Telephone Records Protection Act, and Obama should sign them. Anything less would send a disheartening message to journalists, whistleblowers and Americans everywhere: What happened to the AP could still happen to you.
[This post originally appeared as an editorial in The Wilson Times.]
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