The leadership of the Department of Justice ought to be routed for the blatant contempt they showed for the First Amendment last week when they seized the Associated Press’s phone records.
Attorney General Eric Holder, while noting that he had not ordered the seizure, defended it nonetheless, saying that a 2012 story written by the AP – which revealed a foiled bomb plot based in Yemen – had involved a very serious leak that had put the American people at risk.
The original story released by the AP contained no reference at all to an intelligence asset inside the Yemen operation. It merely revealed the existence and nature of the foiled plot: a more technologically sophisticated update of the hapless “underwear bomber” attack.
Now, eventually, some very serious leaks occurred. Several news agencies began to report in the following days that a British intelligence asset had infiltrated Al-Qaida in the Arabian Peninsula, along with other information that would make the man easy to identify.
But it appears likely that the source of at least some of that information was none other than the recently-appointed director of the CIA, John Brennan.
Shortly after the AP story broke he held a background briefing for former counterterrorism officials who now work as TV news consultants.
The first public revelation of the existence of an agent inside AQAP appears to have come from former chief counterterrorism advisor Richard Clarke, who listened to Brennan’s briefing.
He stated on ABC World News that night that the intelligence community “had insider information, insider control” during the operation, and, therefore, the American public had not been at risk.
The chief sin of the AP article appears to have been that it announced the existence of the terror plot before administration officials were able to organize their own press conference. This revealed the existence of a leak, which likely embarrassed the U.S. intelligence community in front of British and Saudi intelligence, who were also centrally involved in the operation.
This does not even approach justifying the over-broad seizure of several AP reporters’ phone records without prior notice – which potentially compromises not only the source who leaked the existence of the foiled plot in Yemen, but all of their other sources as well.
A federal shield law, which would prevent journalists from being forced to disclose the identity of confidential sources except under truly extraordinary circumstances, is sorely needed.
It could go a long way toward shoring up the now-damaged sense of safety confidential sources feel when talking to journalists.
In the case of seizure of records, this should always be carried out through a normal subpoena process, which allows journalists to fight against disclosure in court.
The protection of confidential sources is an issue of great importance. At it’s most fundamental level, it is not about the rights of the press. Rather, it concerns the right of the people in a democratic republic to know what their government is doing.
David Shulz, the AP’s lawyer, said it best in an interview on The News Hour.
“If the government can get from the press, any time it wants to, information about who its sources are, pretty soon the only thing we are ever going to know about the government is what the government wants to tell us.”
Our history demonstrates that when the state is able to keep its actions concealed from the public, to whom it is supposed to be accountable, abuses of power proliferate: secret wars, secret surveillance of domestic political dissidents, secret assassinations, secret sponsorship of coups to oust elected foreign governments, secret indefinite detention and secret torture.
We should therefore zealously protect the public’s right to oversee its government, which includes within it the right of journalists to keep the identities of their confidential sources protected.
Update: May 22, 1 p.m.
I did not comment on the threats of prosecution made by the FBI against James Rosen, Fox New’s chief Washington correspondent, at the time I wrote this column because I was not sure all the facts had come out yet (I waited a week to comment on the AP scandal).
As of today, though, I am convinced that the threats to prosecute Rosen on charges of aiding and abetting and conspiracy to commit espionage are much, much worse than the seizure of the AP’s phone records. If carried out, a prosecution would amount to the backdoor introduction of a UK-style Official Secrets Act. It would criminalize (with a penalty of up to 10 years in federal prison) the current everyday work of scores of national security reporters and could render the public blind to the actions of its government.
This is not the “thin edge of the wedge.” It is the thick end.
— Bryan Clark is a staff member of the Spirit of Jefferson