Why the Justice Department ‘better have a damned good explanation’ for seizing AP phone records
The Department of Justice’s seizure of two months’ worth of Associated Press phone records stinks. It smells like retribution against the AP for its May 2012 report about how the CIA foiled a bomb plot that targeted a U.S.-bound aircraft — and like heavy-handed government punishment of journalism.
It smells like the Nixon administration’s attempt to yank The Washington Post’s two TV station licenses as punishment for reporting on Watergate, and Nixon’s constant threat to TV networks that they could face anti-trust lawsuits unless they offered more favorable news coverage. And it smells like Joe McCarthy’s scare tactics against CBS after Edward R. Murrow called the thunder down on the Red Scare senator.
As I read the letter Associated Press CEO Gary Pruitt wrote to Attorney General Eric Holder, I wondered how Pruitt stayed so restrained. A spokesman for House Speaker John Boehner said what I felt: “If the Obama administration is going after reporters’ phone records, they better have a damned good explanation.”
And what explanation would qualify? Holder told reporters Tuesday that the leak about the CIA’s involvement in blocking the terrorist attack was “a very grave” one that “put the American people at risk.” But a government that gets too powerful puts people at risk too. And governments that spy on journalists put democracy at risk.
The government already has the ability to see whom you call on your phone. In 1979, in a case called Smith v. Maryland, the Supreme Court said “it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does, in fact, record it for various legitimate business purposes.”
So the government can look at your phone records if the phone company agrees to turn them over. You have practically no protection and — as the Post points out— the government probably doesn’t need any judicial permission to see whom you’ve emailed, either.
But until this week and word of the Justice Department’s move against the AP, journalists lived under a false sense of security and entitlement. In their fantasy land, journalists were specially protected by the First Amendment. And no wonder: The Justice Department actually has a form to fill out when a government lawyer intends to subpoena a journalist’s records. The Attorney General has to sign off on it, as if that signals some sort of special protection for media. The directive requires a multi-part test before any such subpoena will be granted:
The request must contain the following:
• A summary of the facts of the prosecution or investigation as it relates to the information sought to be subpoenaed.
• An explanation as to how the information sought to be subpoenaed is essential to the investigation or prosecution.
• A discussion of possible alternative non-media sources and/or alternative investigative steps that were or could be employed to obtain the information sought to be subpoenaed.
• A description of the attempts to obtain the voluntary cooperation of the news media through negotiation. Negotiations typically should have occurred prior to submission of the request to the PSEU. If negotiations have not occurred, please provide the reasons why.
• An explanation as to how the proposed subpoena will be narrowly fashioned to obtain the necessary information in a minimally intrusive and burdensome manner.
But two months and 20 phone lines is hardly narrow and minimally invasive. The AP says it wasn’t notified of the Justice Department’s intrusion, and so couldn’t have sought judicial intervention.
The fact that the Justice Department is governed by such guidelines and secretly collected the AP’s phone records anyway reminds me of the fact that North Korea’s government has a statute on the books promising a free press. (See Article 67.) But guidelines aren’t laws — the Justice Department’s guidelines, like North Korea’s free-press law, proved worthless as soon as they proved untidy.
Attorney General Holder is citing national security as an excuse for this intrusion — the catch-all concern that governments, including the U.S. government, have used to restrain press freedom for centuries.
The U.S. was barely a nation on July 14, 1798, when Congress passed the Sedition Act with the threat of war with France hanging over the country. That act sent around 25 people, mostly newspaper editors, to prison and shut down their papers. The crime — “false, scandalous, and malicious writing” against the government — was considered “treasonous and a high misdemeanor.”
The Justice Department has walked familiar ground in spying on the AP. The Federalists reportedly sent “committees of surveillance” to spy on Benjamin Franklin Bache, the editor of the General Advertiser in Philadelphia, for supporting Thomas Jefferson. Bache was threatened and his home was vandalized. The Federalists no doubt would have tapped his phone records if there had been phones to spy on back then.
In 1917, Congress was so worried about a German invasion that it passed the Espionage Act, which allowed the government to censor German-language publications or any publication that seemed “pro-German.”
National security was at the heart of the government’s concern in 1971 over the publishing of the Pentagon Papers — then-classified documents about America’s involvement in the Vietnam War.
In 2004, the U.S. government cited military security as the reason it didn’t want CBS to show the Abu Ghraib prison torture video.
This week, my Poynter colleagues and I are teaching on three continents. One of my colleagues is teaching in China. Another is in South Africa. I’m in Canada. Everywhere we go, we hear stories of governments trying to restrict journalists. South Africa has a new government secrecy bill; Turkey is trying to restrict reporting from border-town bombing sites; Pakistan ejected an American journalist trying to cover elections; and a Chinese journalist is in jail accused of publishing video that caused “a bad impression abroad.”
Recently, Reporters Without Borders ranked the U.S. 32nd on its list of countries in terms of press freedom. When I saw that the U.S. was ranked below Ghana and barely above El Salvador, I wondered if there must be some mistake. But now I wonder if that survey ranked our press freedom too high.