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When DOJ targets press, we all lose

Posted: May 15, 2013 12:32 p.m.
Updated: May 20, 2013 5:00 a.m.

To say I was stunned was putting it mildly. I was shocked to learn about the U.S. Department of Justice’s (DOJ) decision to seize phone records belonging to the Associated Press (AP). The C-I does not belong to the AP; I have never written for the service. That doesn’t negate my outrage at DOJ’s actions.

While the Internal Revenue Service’s (IRS) targeting of tea party/patriot groups is outrageous, too, and definitely should not be overlooked, as a newspaper editor and reporter, I wanted to touch on the DOJ/AP case because it actually has implications for you, the reader.

Let’s start off with some background, thanks to Poynter, the leading journalism institute in the country. According to Poynter, DOJ secretly obtained two months worth of phone records from individual AP reporters, and the AP’s offices in New York, Washington and Connecticut. Poynter quoted the AP itself, saying the records appeared to be connected to an AP story about a 2012 foiled al-Qaida plot.

The AP responded to the revelation by saying that the records “potentially reveal communications with confidential sources” and “disclose information about AP’s activities and operations that the government has no conceivable right to know.”

The U.S. Attorney’s Office for the District of Columbia, on the other hand, sent Poynter a statement that said DOJ takes “seriously” its “obligation to follow all applicable laws,” etc., requiring it to “make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media.”

Poynter later declared that DOJ’s legal justifications require “further scrutiny” because the department claimed it should do what it did “only in certain circumstances.” In a letter to the AP, Deputy Attorney General James Cole claimed that while the department is “required to negotiate with the media organization in advance of issuing the subpoenas unless doing so would pose a substantial threat to the integrity of the investigation.” Cole claimed DOJ conducted a comprehensive investigation before seeking the phone records.

Cole seems to be saying, “Yeah, we could have told you we were seeking these phone records, but it would have messed up our investigation if we had.” An investigation into what, though? The government hasn’t specified that the al-Qaida story is involved. If it is, though, then DOJ is obviously trying to figure out who leaked the information to the AP.

And I have no problem with them doing that. If DOJ truly believes -- as Attorney General Eric Holder said last Tuesday -- that the leak “put the American people at risk,” then, by all means, found out who leaked the information and discipline or even prosecute them.

But spying -- because that’s what it was -- on reporters and news organizations to uncover the source of the leak isn’t the way to do that. Poynter’s Al Tompkins said in response to Holder’s statement, “But a government that gets too powerful puts people at risk, too. And governments that spy on journalists put democracy at risk.”

That’s exactly why every citizen of these United States should be just as mad at DOJ as they are the IRS.

According to Tompkins, DOJ’s own guidelines require government lawyers to fill out a form, submitted for the attorney general’s sign-off if certain criteria is met. The last of the criteria is, perhaps, the most interesting: “An explanation as to how the proposed subpoena will be narrowly fashioned to obtain the necessary information in (a) minimally intrusive and burdensome manner.”

Tompkins argues, and I would agree, that “two months and 20 phone lines is hardly narrow and minimally invasive.” And by not notifying the AP ahead of time, it gave the news agency no chance to seek protection from the DOJ’s action.

But, as Tompkins also points out, DOJ guidelines are just that and nothing more; they are not laws. Guidelines without force of law mean nothing, in my opinion, and so DOJ did what it could -- but not what it should -- to investigate whatever it’s really investigating.

Why is this important to you, the reader?

While I’m not a member of the AP, I am a member of the Society of Professional Journalists (SPJ). Our national president, Sonny Albarado, put out a statement condemning DOJ’s actions. In it, he points out that reporters don’t have subpoena powers and that this country needs a federal Shield Law that would protect journalists from having to reveal sources and documents to the government.

“Sources” could be you. I’ve said before that I do not like to use anonymous sources. I have never done so, and think they should only be used when absolutely necessary in order to uncover something harmful to the public.

That said, if you were to come to me with such information and I agreed to protect your identity, the government shouldn’t be able to either compel me to reveal who you are nor should they be allowed to secretly dig into my files and phone records to figure out who you are if I refuse to tell them myself.

The DOJ’s actions, if allowed to stand, could cement an infringement of the AP’s and its reporters’
First Amendment rights. Reporters are your eyes and ears, especially in acting as government watchdogs.

Shredding the right to a free press is the first step to shredding everyone’s rights to free speech. And that should never happen.


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