We are all mindful of national security and we expect law enforcement to be vigilant. We also expect it to take every precaution before taking any action that could be harmful to freedoms we all take for granted. Reports of the growing tension between the U.S. Department of Justice and the media are especially disconcerting, and should be more comfortably ascribed to a George Orwell novel than the present administration.
In recent days, we have learned that the DOJ not only had declared a journalist a co-conspirator in one leak investigation for doing his job but has actively subpoenaed phone records and other information from other major news organizations without any notice.
The DOJ’s anti-leak investigations, including disclosures by self-described "whistleblowers" otherwise protected by law, have been known for some time. No one disputes the right of the DOJ to pursue leaks of classified information. However, only more recently has the legally questionable means by which the government sought to obtain allegedly incriminating information about such leaks come to light. While Attorney General Eric Holder Jr. recently responded to an outcry about these subpoenas and said he is "not satisfied" with guidelines on how prosecutors conduct leak investigations, a deeper problem exists. It now appears that the attorney general himself signed off on a May 2010 subpoena of Fox News reporter James Rosen’s emails with a State Department analyst, which was based on an affidavit referring to Rosen as a likely co-conspirator in the leak. The clamor has just begun over whether Holder misrepresented that fact to Congress.
The examples of DOJ investigations into leaks to journalists are disconcerting to say the least:
• A 2012 subpoena for lists of calls and call durations for the work and personal phone numbers of Associated Press reporters in New York, Washington, D.C., and Hartford, Conn., as well as its line at the House of Representatives press gallery, apparently related to a report, citing anonymous sources, that the CIA had thwarted a plot by an al Qaeda affiliate to "destroy a U.S.-bound airliner using a bomb with a sophisticated new design around the one-year anniversary of the killing of Osama bin Laden."
• A June 2012 subpoena for phone and email logs related to a report published in 2011 by New York Times reporter David Sanger about attempts to sabotage the Iranian nuclear program.
• Investigations into two 2010 AP reports, both where AP honored requests from the government for delays in publication: one involving a 2010 report of a sealed indictment against an accused al Qaeda operative and the other concerning the arrest of terrorism suspects in Norway.
• The May 2010 subpoena of the deleted Google emails between Fox News’ Rosen and a State Department analyst related to North Korean plans to respond to pending U.N. sanctions by means of another nuclear test.
While it is true that leaks of classified information to the press can pose a risk of harm to national security, it is also true that, by unilaterally enlisting the media as an unwilling and unwitting accomplice to such investigations, the very freedoms the investigations claim to protect are being undermined. None of these inquiries was on notice to the journalist or media entity whose information was subject to subpoena.
Notice is neither difficult nor unprecedented. The administration of President George W. Bush, which had no compunctions about subpoenaing journalists’ records or even journalists themselves to testify, at least gave notice of the subpoenas. In 2004, the DOJ subpoenaed the telephone records of two Times reporters to determine whether a call from one of the reporters to an Islamic charity in Illinois, suspected of financing al Qaeda, tipped off charity officials, who shredded documents before a federal raid. Though the newspaper ultimately lost its challenge on appeal, it did so by means of a two-year-long public process subject to judicial scrutiny. Likewise, in a criminal case, U.S. v. Sterling, No. 1:10-cr-485-LMB (E.D.Va. 2011), a court invoked the First Amendment to quash a subpoena seeking to compel the testimony of another Times reporter, James Risen, in the criminal prosecution of a former CIA officer charged by the Obama administration with disclosing restricted information to journalists.
Without the news media’s ability to challenge subpoenas, DOJ investigations are subject only to its own internal scrutiny. The DOJ’s internal guidelines concerning "subpoenas for telephone toll records of members of the news media," 28 CFR §50.10, provide for, among other things, subpoena of telephone records without notice, 28 CFR §50.10(g)(3), where such notice "would … pose a substantial threat to the integrity of the investigation in connection with which the records are sought," 28 CFR §50.10(d), so long as "the United States Attorney or the responsible Assistant Attorney General, after having been personally satisfied that the [other] requirements [e.g., balancing of public interests in free information and law enforcement, less intrusive means] of this section have been met." 28 CFR §50.10(e).
It is clear that neither the media nor the public can rely on the DOJ’s own self-declared objective that "the prosecutorial power of the government should not be used in such a way that it impairs a reporter’s responsibility to cover as broadly as possible controversial public issues. This policy statement is thus intended to provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news-gathering function." 28 CFR §50.10.
Although the jurisprudence in this area is unsettled, Justice William Brennan Jr. long ago noted "there is support for the proposition that the First Amendment interposes a threshold barrier to the subpoenaing of confidential information and work product from a newsgatherer." In re Roche, 448 U.S. 1312, 1315 (1980). In this regard, Justice Lewis Powell emphasized that federal authorities are not "free to ‘annex’ the news media as ‘an investigative arm of government.’" Rather, "[t]he asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions." Branzburg v. Hayes, 408 U.S. 665, 709-10 (1972) (Powell, J., concurring).
Though the Obama administration has expressed no intention of criminally prosecuting journalists for publishing classified information, we take no comfort in such assurances. Nor should renewed calls for a federal statutory shield law — long overdue and never before taken seriously by any administration — mollify demands that the DOJ take its own policy objectives seriously. If there is a silver lining in these disclosures, it is that the administration’s actions have been laid bare and the DOJ is on the defensive. But the damage to historically lawful news gathering by the media should not be understated. The chilling effect on the willingness of confidential sources to share information with the press; the unprecedented threat of criminal prosecution of journalists such as Rosen by casting legitimate news gathering as a violation of the Espionage Act; the correlative ability of the press to exercise its constitutional role to hold government accountable (particularly for covert activities); and the repression of the quality and quantity of information essential to an informed democracy are all very palpable and very fragile.
There may indeed be occasions that do not involve any protected whistle-blowing activity when national security interests prevail over First Amendment rights. But that determination should not be left to the unilateral view of the entity claiming national security. The DOJ’s self-serving discretion, pursuant to internal review without any check and balance, reflects pure disdain for the constitutional interests at stake. Big Brother must be reined in. There is no substitute for judicial scrutiny in the protection of constitutional rights.