Can national security imperatives be invoked as grounds for violating the right to inform and be informed, a right that the United States has enshrined as a core constitutional principle in its First Amendment?
The question seems to have been raised again by the Associated Press's revelation on May 13 that the U.S. Department of Justice seized the April and May 2012 records of 20 of its phone lines although, as everyone knows, there can be no freedom of information without respect for the confidentiality of journalists' sources.
A "massive and unprecedented intrusion" is how AP president and CEO Gary Pruitt described it in a letter to Attorney General Eric Holder. Use of the term "unprecedented" may be arguable given the federal government's record of unconstitutional snooping and phone tapping ever since the Watergate era. But "massive" it certainly was. The scale of this federal intrusion into a leading news agency's activities has exposed a clash of values capable of shaking a reputedly democratic state to its foundations.
Let's summarize the facts. An AP team of journalists published a story on May 7, 2012 describing a CIA operation in Yemen that thwarted an Al-Qaeda plot to blow up a U.S.-bound airliner. As this intelligence success was meant to have been kept secret, one can understand the federal government's dismay at seeing highly sensitive information entering the public domain. But how big a price should be paid for unmasking the source of a possible leak?
The magnitude of this violation of phone call confidentiality, which even included scouring the records of calls made from personal lines and mobile phones, speaks volumes about a political readiness to ride roughshod over the right to data privacy and the right to protect one's sources, the cornerstone of journalistic work.
Even more seriously, the authorities involved seem almost brazen about this breach of one of the leading principles of the rule of law. In the notification it sent to the AP on May 10, a year after the events, the Department of Justice did not trouble to offer the least legal grounds for what it did.
Is the much-criticized Patriot Act now too shameful to be mentioned? Its effects unfortunately persist. They flout the First Amendment. They endanger the information of public interest that journalists have a duty to reveal and citizens have every right to expect. And finally, they violate the right to protect sources that journalists enjoy in 34 states of the Union but are still denied under federal law.
Special thanks to Benoit Hervieu