c.2013 New York Times News Service
c.2013 New York Times News Service
Earlier this year, federal investigators secretly obtained two months of phone records of reporters and editors at The Associated Press, including calls on their home phones and cellphones. They did so without providing notice to AP, which could have asked a judge to quash the requests, or at least negotiated the scope of the investigation. It was an extraordinary incursion into the operations of a news organization, but the Justice Department did not violate any laws, which manages to be both comforting and shocking at the same time.
Those intrusive tactics bore fruit last week when Donald Sachtleben, a former FBI agent, agreed to plead guilty to leaking classified information to the AP about a foiled bomb plot in Yemen by al-Qaida. The leak investigation arose after AP published an article in May 2012, revealing that the government had disrupted the plot, which prompted a cascade of disclosures elsewhere in the news media, including that the bomber at the heart of the plot was a double agent.
The government believed that the leak and the subsequent coverage compromised a vital national security operation and relentlessly investigated the case. It interviewed 550 people with no success until it went after the AP’s records and discovered that Sachtleben, a former bomb technician, had disclosed the information about the foiled bombing.
His plea — he agreed to serve 43 months in prison for the leak charge — might seem to vindicate the prosecutorial aggression of the Justice Department, except for the part about wiping its feet on the First Amendment in the process. (Sachtleben separately agreed to plead guilty in an unrelated child pornography case.)
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The seizure of records from 20 or more phone lines meant that thousands of calls to sources made on behalf of hundreds of articles at the AP were snooped on, many of which had nothing to with the matter being investigated.
All that took place after no discussions, arguments, or proceedings, just a quiet, wholesale harvest of phone records. (I should also point out that the AP let the government know about the story it was working on, and held it for five days at the government’s request.)
Media organizations asserted that the intrusion into the news gathering process was part of a sustained effort by the administration to fight transparency and punish leakers. To drive the point home, a few weeks later, it was revealed that investigators had obtained a search warrant for the email of James Rosen, chief Washington correspondent for Fox News, by provocatively arguing he was a criminal co-conspirator.
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But what appeared to be a low point in a long campaign to rein in reporters and chill their sources may turn out to be a very big blessing in disguise.
Chastened by the outcry, the Justice Department revisited its ancient guidelines — now many decades old and codified when there was no such thing as email — and made meaningful reforms. Sounding for all the world like a stalwart defender of press freedom, Attorney General Eric H. Holder Jr. said, “The Department of Justice is firmly committed to ensuring our nation’s security, and protecting the American people, while at the same time safeguarding the freedom of the press.”
The new guidelines default toward providing advance notice to news organizations when investigators pursue news gathering materials, except when notification would threaten continuing investigations. And the guidelines no longer let investigators portray reporters as engaged in a criminal act, in an effort to bypass restrictions in the Privacy Protection Act.
Even more improbably, the administration has put its weight behind enacting a federal shield law that would offer some protection for the confidentiality of reporters’ sources. Such a law, long a grail for the news media, is gaining momentum and has an opportunity to be the rare issue that gains bipartisan support in Congress.
Under the law, judges, not investigators, would decide when reporting materials merit protection. A version of the bill passed out of the Senate Judiciary Committee this month and could head to the Senate floor this session. (The House of Representatives is working on its own version.)
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A similar bill had momentum in 2009, but lost steam after WikiLeaks burst on the scene and began spilling government secrets. But now there is a chance that some form of the bill — entitled the Free Flow of Information Act of 2013 — will become law. There are some major carve-outs in the legislation, limitations on what constitutes an act of journalism, most of which seem aimed at next-generation news organizations that sometimes simply post classified material, rather than report more in-depth articles based on that information.
The sudden appearance of a pony in what had been a growing pile of manure around press freedom was seen as a welcome turn of events by Gary Pruitt, the president and chief executive of the AP.
“While we were not pleased by what took place, the new guidelines will provide for greater protection for journalists for years to come,” he said in a phone interview.
“I think that people were taken aback by the aggressive tactics and how secretive they were,” he added. “They understand that if we can’t hear from unofficial sources, we will only know what the government wants us to know, and that is not what the First Amendment was designed to protect.”
Not everyone is thrilled, however, by the sudden openness to openness. They include Stewart Baker, a former general counsel to the National Security Agency and former head of policy at the Department of Homeland Security. Speaking of the AP’s source, he said: “What this guy did is appalling. He sneaked in and picked up gossip and retailed it to feel like a big shot.”
He added, “The government exhausted every avenue and spent vast amounts of taxpayer money in pursuit of the leak and eventually found another way. I can’t speak to why they didn’t go to court to do that.”
Baker has been an outspoken supporter of the prosecution of leaks, but as someone who frequently blogs, he also worries about the government doing the deciding when it comes to who in journalism is worthy of protection. (Matt Drudge, who has broken a fair number of stories over the years, shares his skepticism.)
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For reporters, there is a clear and persistent danger in the current state of affairs. In July, a federal appeals court ruled that James Risen of The New York Times had no more right than any other citizen to resist giving evidence against a former CIA officer. The officer, Jeffrey Sterling, is accused of being a source for a chapter in Risen’s 2006 book, “State of War,” which describes a CIA effort to trick scientists in Iran.
It remains unclear whether Risen could be compelled to testify under the proposed shield law, because of wholesale national security exceptions written into the legislation. Some involved in that kind of reporting believe such a law would do more harm than good.
Given the perils of defining who is a journalist and the continuing tension between open government efforts and national security, it will be difficult to come up with a shield that protects both speech and secrets. But in this instance, the perfect seems to be very much the enemy of the good.
The new guidelines at the Justice Department and some form of shield law will put more tools in the hands of journalists and their lawyers. I’ll root for anything that puts more speed bumps in the way the next time prosecutors want to simply roam around in the records of a news organization that stand between them and one of their targets.