Unconstitutional. Sweeping. Secretive. Abusive. Harassing.
Gary Pruitt, the president and CEO of the Associated Press, used those words on CBS’s Face the Nation to describe the Justice Department’s seizure of two months of AP reporters’ phone records in New York, Washington, and Hartford, Conn. As Attorney General Eric Holder said in an entirely different context, that’s not hyperbole.
Original reports on the subpoena indicated it called for the capture of phone logs of reporters’ office phones, cell phones, and home phones. The subpoena did not allow the Justice Department to obtain the contents of the phone calls, merely the logged numbers. That’s cold comfort to any reporter who knows that phone numbers are a source’s fingerprints and access to them can give the government an evidentiary trail to a suspected leaker.
We now know the subpoena was broader than first reported. It covered 21 phone lines, including five cell phones and three home phone numbers. Incredibly, the subpoena covered two fax lines and a phone number in a D.C. office that had been dead for six years. Think about that. The Justice Department was so imprecise in its scrutiny of AP phone numbers, so derelict in its understanding of which phone numbers were relevant, that it subpoenaed logs of two fax lines and a phone number deader than Jake Gittes.
Dan Pfeiffer, senior adviser to President Obama, complained on ABC’s This Week that the congressional Republican playbook relies on “partisan fishing expeditions.” The Justice Department investigation of the AP has no partisan taint but does reek of a fishing expedition. The White House says there’s more than meets the eye in the AP subpoena story and the news agency’s strident language may come back to haunt it. Some have described the leak behind the original AP story as a serious and harmful national security breach. The AP is considering its legal options, and if it sues, we’ll all know whose tactics and rhetoric were over the top.
The broader question here is Obama’s attitude toward press freedom, the First Amendment, and scrutiny of the government he leads. The answer, by the way, cannot be found in Obama’s suddenly revived interest in a media-shield law. That’s because the bill Obama asked Sen. Chuck Schumer, D-N.Y., to resurrect would make it easier for the Justice Department to investigate and jail reporters who refuse to disclose sources for stories deemed threatening to national security. Obama reversed course on press freedoms when he became president, and the shield law he now champions would have provided no protection to the AP.
In the Rose Garden last week, Obama stood next to Turkish Prime Minister Recep Tayyip Erdogan and said the First Amendment must be balanced against national security threats.
“It’s important to recognize that when we express concern about leaks at a time when I’ve still got 60,000-plus troops in Afghanistan, and I’ve still got a whole bunch of intelligence officers around the world who are in risky situations … that part of my job is to make sure that we’re protecting what they do, while still accommodating for the need for information.”
In a broad national security context, Obama is only willing to accommodate the need for information. Not protect. Not balance. Not uphold. Accommodate. It’s particularly telling that Obama offered this narrow interpretation of the First Amendment in Erdogan’s presence. Turkey is debating its own bleak history of imprisoning and fining journalists and media organizations for criticizing the government. Turkey is also in the middle of rewriting its constitution and deciding how best to apportion press freedoms. Obama’s remarks, at minimum, invited a crabbed interpretation of press freedoms.
This is all the more apparent in the Justice Department’s investigation of my former Fox News colleague James Rosen. The FBI subpoenaed Rosen’s private e-mail and phone records and justified this vacuuming up of private information because Rosen was “an aider, abettor and/or co-conspirator” of a potentially criminal national security leak.
When I asked Monday if Obama believed a reporter uncovering government secrets was a criminal, Carney had no answer. One day later, Carney said reporters doing their job should not be considered potential criminals.
On press freedom, the First Amendment and reporters’ rights to scrutinize, investigate, and make his government uncomfortable, Obama looks and sounds a day late and a shield law short.
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Major Garrett is National Journal Correspondent-at-Large and Chief White House Correspondent for CBS News. This article appears in the May 22, 2013, edition of National Journal Daily as Disempowering the Press.