DOJ Broad Subpoena of AP Journos Phone Logs an Assault on Press Freedom

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The great jurist, Judge Learned Hand,  recognized that "[t]he hand that rules the press, the radio, the screen and the far-spread magazine rules the country." "A free press is not a privilege," journalist Walter Lippman wrote, "but an organic necessity in a great society."

Unfortunately, the Administration of President Barack Obama, which has initiated a record six cases under the Espionage Act against individuals alleged to have leaked classified information, has embraced Judge Hand's caveat but apparently turned its back on Lippmann's plea for press freedom, the cornerstone of our society.

The U.S. Department of Justice subpoenaed the telephone records of 20 phone lines of Associated Press reporters and editors from April and May 2012, which included journalists' cellphone and home numbers, and those of AP bureaus in New York, Hartford and Washington, D.C., as well as the AP press phone in the U.S. House of Representatives, the DOJ revealed to the AP last Friday.  Reportedly, the subpoenas sought the telephone numbers of those with whom the AP staffers had contact and the length of each call. Purportedly, the DOJ was reacting to a May 2012, AP story about a thwarted terrorist plan in Yemen and was gathering data for its probe into how AP learned about a conspiracy involving an underwear bomber on an airline destined for the U.S.

AP condemned the government seizure of phone logs as a "massive and unprecedented intrusion by the Department of Justice into the news-gathering activities (of AP)." The American Civil Liberties Union criticized the DOJ's actions as "an unacceptable abuse of power." AP CEO Gary Pruitt has demanded the return of the phone records and that all copies be destroyed.

Media organizations and free press advocates expressed shock at the breadth of the phone logs sought by the DOJ under the mantle of national security and fretted about the chilling effect the move would have on reporters' interactions with their sources.  Joining in the chorus of those criticizing the DOJ actions were prominent GOP legislators and members of past Republican White House administrations, many of whom wouldn't have shed a tear if the New York Times building had burned down when the Times reported during the Bush Administration on NSA wiretaps of Americans' overseas phone calls and the overseas locations where enhanced interrogation of suspected terrorists occurred.

Because of the U.S. Supreme Court decision in Smith v. Maryland, 442 U.S. 735 (1979), authorities need only show relevance to a criminal investigation to secure subpoenas of telephone carriers for data, including incoming calls and the phone numbers of outgoing calls and when such calls were made. In contrast, electronic eavesdropping on the phone calls of American citizens is illegal unless law enforcement obtains a warrant from a judge.

Apparently, the DOJ did not inform the AP about seizing the phone records for more than two months after it secured the records, which appears to violate government regulations set forth in 28 C.F.R. sec. 50.10. Under the regulations, the news media must be told of the receipt of any data within 45 days. Moreover, the Attorney General must give approval to the Justice Dept. before it subpoenas the press, which is usually a last resort. Protocol usually involves authorities making an attempt to negotiate with the targeted media outlet for release of information before resorting to subpoenas.

The political blowback against elected officials perceived to be anything but vigilant and steel-jawed in their pursuit of those who would do harm to the U.S. has too often in recent years caused those in power, along with the news media and the public, to be lax in their support of the First Amendment, Fourth Amendment and other Constitutional provisions.  But as Thomas Jefferson once noted: " A society that will trade a little liberty for a little order will lose both and deserve neither."