Published May 21, 2013
WASHINGTON – It was a rare moment in relations between the media and the government: In 2008, FBI Director Robert Mueller called the top editors at The New York Times and The Washington Post to apologize because the bureau had improperly obtained reporters' telephone records four years earlier.
The extraordinary call was an admission that the FBI's actions violated Justice Department policy about seeking journalists' phone records. But nothing about what the FBI did in 2004 appeared to run afoul of any law.
The Justice Department's latest effort to examine whom journalists are talking to — the secret subpoena of Associated Press phone records from April and May of last year — demonstrates how government investigators are guided more by policy and the judgments of high-ranking officials than by specific laws or, in this case, the need to satisfy an independent federal judge.
The AP case involves a criminal investigation into who gave information to the news cooperative's reporters about a foiled bomb plot in Yemen. The AP's May 7, 2012, story attributed details of the operation to unnamed government officials.
The government informed the AP 10 days ago that it had secretly obtained records for 21 phone numbers, including those of the reporters on the bomb plot story. The department's guidelines, first drafted in the wake of Watergate-era government abuses, call for news organizations to be informed before investigators ask phone companies for records unless doing so would compromise the investigation.
Attorney General Eric Holder said the story was the result of "a very serious leak, a very grave leak." AP President and Chief Executive Officer Gary Pruitt called the gathering of phone records a "massive and unprecedented intrusion" into how news organizations gather the news.
New developments emerged Monday in another case that has led to the indictment of an official for revealing classified information. Federal prosecutors got a search warrant for the private emails of Fox News reporter James Rosen and used building security records at the State Department to track his movements as they sought to identify whom he had relied on for classified information in a story about North Korea.
The tension over balancing the government's duty to protect national security and the media's role as public watchdog is long-standing. Take away protections for reporters' confidential sources and "the people who know what's happening become fearful, and they will not come forward with information the public may find very valuable," said Lucy Dalglish, dean of the University of Maryland's journalism school. "It's a classic chilling effect."
But neither, said George Washington University law professor Orin Kerr, does the public want a world of free disclosure by government workers with no opportunity for the government to investigate. "It requires a very delicate balance. We wouldn't want either extreme," Kerr said.
One possibility for compromise is a long-discussed federal media shield law to go along with similar laws in most states. Even as President Barack Obama defended his administration's aggressive pursuit of leakers of government secrets, he also said Congress should consider a law that generally would protect journalists from government subpoenas and allow judges, in rare instances, to decide whether national security concerns trump press freedoms.
Sens. Chuck Schumer, D-N.Y., and Lindsey Graham, R-S.C., said they would introduce a new version of a media shield bill that Congress last considered four years ago.
The congressional proposals — and there have been many over the years — are partly a response to a 1972 Supreme Court ruling that nothing in the First Amendment protects reporters from being called to testify before grand juries. Justice Byron White's majority opinion scoffed at the idea that it would dry up confidential sources. He said Congress was free to give journalists, or "newsmen" in that era's parlance, additional protection under federal law. That case arose in the context of the government's pursuit of Black Panthers and also drug users in Kentucky.
But the 5-4 ruling in Branzburg v. Hayes also has bedeviled generations of prosecutors, media lawyers and judges because one of the five justices in the majority, Lewis Powell, wrote a concurring opinion that suggested that maybe the court's holding was not as absolute as it sounded. Powell said courts would consider the competing claims of prosecutors and journalists case by case, and called judges to strike "a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."
At the time, Justice Potter Stewart charitably referred to Powell's opinion as "enigmatic" and hoped that it would lead to "a more flexible view in the future."
Last year, Judge Albert Diaz, a member of a federal appeals court panel that is weighing an effort to compel a reporter's testimony in an investigation of unauthorized disclosure, called the 1972 ruling "clear as mud." The panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., has yet to rule on the attempt by New York Times journalist James Risen to avoid testifying at the trial of former CIA officer Jeffrey Sterling. Sterling is accused of leaking classified information about a botched covert operation in Iran.
Earlier, U.S. District Judge Leonie Brinkema, the trial judge handling Sterling's case, sided with Risen, saying, "A criminal trial subpoena is not a free pass for the government to rifle through a reporter's notebook."
Other courts, though, recently have rejected journalists' attempts to quash subpoenas for their testimony.
The rules governing how the government seeks other information such as emails haven't kept up with the pace of technology. When it comes to electronic records held by Internet service providers, technology companies and credit card companies, the rules "are not as strict as they are for news media telephone toll records," said Alan Butler, appellate advocacy counsel for the Electronic Privacy Information Center.
The wide sweep of the subpoena — across AP bureaus in Washington, New York and Hartford, Conn. — and the lack of advance warning make the government's approach look "more like a dragnet" than the narrowly drafted request the Justice Department guidelines say is required, Dalglish said.
University of Chicago law professor Geoffrey Stone said Justice Department officials are aware that the broader they cast the net, the more questions they will face. "They reached as far as they did because it was the only way to get the information they needed," Stone said.
As for the lack of notice, he said, it was at least plausible to believe that the authorities "really want to catch this guy who leaked really bad information, from their perspective. They didn't want to do anything to scare him off."