The protection of a free press is written, word by word, in the Constitution. It isn’t an offshoot of the right to free expression, or a judicial interpretation of the Framers’ intentions: It’s at the core of the nation’s framework of governance. It’s meant to be a check on government power, and explicitly bans Congress from enacting any law that abridges it. Thus, the Justice Department, by its own rules, can only seek information from reporters in special circumstances, and subpoenas must be written “as narrowly as possible.”
That wasn’t the case when the Justice Department secretly examined two months of phone records of more than 20 lines belonging to the Associated Press and its reporters, including the main news numbers in Washington, New York, Hartford, and the AP’s congressional bureau. The Justice Department was investigating whether any government officials gave the AP classified information about the CIA’s infiltration of an Al Qaeda cell in Yemen. The unauthorized release of the information may have cost the agency a key source inside Al Qaeda. The stakes seem high enough to justify such a probe — but not to justify two months’ worth of fishing around in general AP phone records, searching for a needle in a haystack.
The Justice Department has many investigative methods at its disposal that do not violate the privacy essential to news reporting. The classified information about the CIA informant was known only to a small circle of officials; the FBI could winnow its suspects accordingly. It could then seek phone and other records from those officials alone, and back them up, if absolutely necessary, by cross-checking the information with AP records, by means of a narrowly tailored subpoena.
Instead, the Justice Department threw open the private communications of the nation’s largest wire service. A news organization’s ability to serve as an effective check on government depends on its ability to grant confidentiality to sources — and on the ability of tipsters to talk with reporters without having their communications tracked by authorities. Some sources are government whistleblowers exposing illegal or unethical actions by people in power; others are people inside government agencies offering illuminating information or perspectives about government operations. Either way, those people won’t be comfortable coming forward if they think the Obama administration and its successors are free to broadly monitor the phone records of news organizations.
Under Justice Department rules, the attorney general must personally approve subpoenas seeking information from news organizations. His duty is not to facilitate an investigation by any available means, but rather to balance the interests of justice and uphold the Constitution. Attorney General Eric Holder maintains that, because the FBI interviewed him in connection with its leak investigation, he recused himself and left the decision on whether to subpoena the phone records to Deputy Attorney General James Cole. Cole owes the public a full explanation of his actions.