The Justice Department's seizure of phone records from the Associated Press news service as part of a leak investigation, revealed on May 13, constitutes a troubling encroachment on the freedom of the press. It underscores longstanding concerns about the Obama administration's willingness to trample the First Amendment in pursuit of government whistleblowers (Extra!, 9/11).
Justice notified AP after the records–which cover phone calls from a two-month period from a variety of office, home and cell phones–had already been obtained, an unusual chronology that prevented AP from challenging the government's subpoena. AP president and CEO Gary Pruitt called it a "massive and unprecedented intrusion" (New York Times, 5/14/13).
As the Guardian's Glenn Greenwald (5/14/13) noted, "The legality of the DOJ's actions is impossible to assess because it is not even known what legal authority it claims nor the legal process it invoked to obtain these records."
In a May 14 press conference, Attorney General Eric Holder defended the move by describing the leak in question as one of "the top two or three most serious leaks that I've ever seen," one that "put the American people at risk." Those claims are hard to square with what is known so far about the story that seems to have set off the investigation.
AP ran a story by Adam Goldman and Matt Apuzzo (5/7/12) about the CIA's disruption of a plot by Al-Qaeda in Yemen to blow up an airliner "using a bomb with a sophisticated new design." The piece noted that the alleged bomber "had not yet picked a target or bought a plane ticket when the CIA stepped in and seized the bomb." AP added that the plot was uncovered "even as the White House and Department of Homeland Security assured the American public that they knew of no Al-Qaeda plots against the U.S. around the anniversary of bin Laden's death."
The arrest of an Al-Qaeda operative is not news to Al-Qaeda, nor are militant groups unaware of the types of bomb technology they possess. The existence of plots to harm the American public is, however, something that that public has a right to know about–particularly if the government is misleading them about issues of national security.
Before publishing its report, the news agency had evidently complied with government requests to delay the story:
The AP learned about the thwarted plot last week but agreed to White House and CIA requests not to publish it immediately because the sensitive intelligence operation was still under way. Once officials said those concerns were allayed, the AP decided to disclose the plot Monday despite requests from the Obama administration to wait for an official announcement Tuesday.
From the sound of that, the AP reported on Monday what the government planned on disclosing on Tuesday. Does this really require a government fishing expedition into whom the nation's leading news service was communicating with?
The Justice Department's stepped-up pursuit of government leaks appears to be a response to congressional complaints about national security leaks. As the New York Times (6/9/12) reported, "bipartisan pressure for a crackdown" led Holder to announce "the appointment of two top prosecutors to lead investigations into recent disclosures."
Whatever the government's rationale for this extreme action, it sends an unmistakable signal: When government officials talk to journalists about matters of compelling public interest, the Justice Department will go to extreme lengths to find out who they are and prosecute them, even if it this requires the kind of government surveillance of journalism that is incompatible with a free press. And the media outlets that employ those journalists may be prevented from using the legal system to challenge the government's intrusion.