The U.S. Justice Department's secret seizure of two months of phone records for reporters and editors of the Associated Press is a reckless violation of the First Amendment. So egregious is this violation of the U.S. Constitution that Attorney General Eric Holder must be held accountable.
On Monday, the president and chief executive of A.P., Gary Pruitt, sent a stinging letter to Attorney General Holder condemning the department's "massive and unprecedented intrusion" into its organization. Pruit wrote:
These records potentially reveal communications with confidential sources across all of the news gathering activities undertaken by The A.P. during a two-month period, provide a road map to A.P.'s news gathering operations, and disclose information about A.P.'s activities and operations that the government has no conceivable right to know.
Last June, Mr. Holder assigned Ronald C. Machen Jr., the United States attorney for the District of Columbia, to lead one of two investigations into government leaks of national security information to the media. The leak investigations were in response to demands from Congress for a crackdown following pre-election disclosures about a bomb plot, cyber warfare against Iran, and details of the raid that killed Osama bin Laden. Republicans accused the Obama administration of intentionally leaking the information to news organizations, including the A.P., to make the president look strong on national security. The White House denied the charge.
Mr. Machen's spokesperson told the New York Times, "We must notify the media organization in advance unless doing so would pose a substantial threat to the integrity of the investigation." He further explained, "Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws."
But news organizations are outraged. For instance, The Newspaper Association of America called the seizure unprecedented. "These actions shock the American conscience and violate the critical freedom of the press protected by the U.S. Constitution and the Bill of Rights," it said in a statement. And Republicans in Congress have criticized the Justice Department's actions. House Speaker John Boehner's spokesman said, "The First Amendment is first for a reason. If the Obama Administration is going after reporters' phone records, they better have a damned good explanation."
The controversy over the seizure of the A.P. phone records comes as the administration is struggling to explain why the Internal Revenue Service secretly targeted conservative and Tea Party tax-exempt groups for extra scrutiny. Further, the White House is embroiled in a dispute over "scrubbed" talking points used following a terrorist attack on the U.S. diplomatic compound at Benghazi, Libya, in which four Americans died, including Ambassador Chris Stevens. Together these issues raise questions about the president's leadership.
There is nothing more sacred in the American democracy than freedom of the press. Independent news organizations serve a critical role in monitoring government for crimes and abuses of power. At times, confidential sources are essential for the disclosure of wrongdoings. Most news organizations do not grant confidentiality unless the information provided is vital to the public interest. Journalists seriously weigh an individual's motives for giving information against the need for the public to know. But disclosure of confidential sources to the government can have a chilling effect on the free flow of critical information, and can lead to retribution.
The freedoms enjoyed by the American press are the envy of the world. Freedom of the press is one of the founding principles upon which the country was built. Any attempt to undermine this principle is an attack on American values. It seems unlikely that Attorney General Holder was not informed of these unusual actions by his department's special investigation into government leaks. Nonetheless, the seizure of phone records from the A.P., a non-profit global news organization owned by American newspaper and broadcast companies, is an outrageous abuse of power by his Justice Department.
Attorney General Holder must take this breach of an essential right seriously in order to send a wake up call to all government agencies, and to the world.