When it comes to prosecutors’ investigations of leaks, you can count on journalists to dispense with impartiality and scream bloody murder. Upon learning that the Justice Department had seized the phone records of its reporters, the Associated Press said there could be “no possible justification” for the intrusion. The Newspaper Association of America agreed, “These actions shock the American conscience.”
The surprise was to hear Republican members of Congress sounding the same alarms. “If the Obama administration is going after reporters’ phone records, they better have a damned good explanation,” thundered a spokesman for House Speaker John Boehner — whose car might just have one of those bumper stickers that say, “I don’t believe the liberal media.”
You could almost forget that last summer congressional Republicans were accusing the administration of being soft on leakers and demanding a special prosecutor to punish “intolerable” disclosures. Now they fault the Justice Department for going overboard.
Even Democrats are reluctant to defend the phone records grab. But when everyone in Washington agrees on something, some skepticism is in order.
As a rule, investigators should try to avoid getting in the way of journalists doing their jobs. The news media are vital to democracy, and leaks are one way they expose facts relevant to the citizenry. Only a totalitarian system could hope to completely eliminate such disclosures.
But not all leaks are benign. Some are dangerous and criminal. This one involved the CIA foiling of a Yemen-based plot to blow up a commercial aircraft. Attorney General Eric Holder noted he’s been a prosecutor since 1976 and said it “is within the top two or three most serious leaks that I’ve ever seen.”
Even with a truly harmful leak, the Justice Department has a duty under its own self-imposed guidelines to try every other way to find the leaker — and to limit its search to facts essential to solving the case. Deputy Attorney General James M. Cole said it abided by those restrictions. In a letter to AP, he said prosecutors went so far as “conducting over 550 interviews and reviewing tens of thousands of documents, before seeking the toll records at issue.”
Barack Obama has been more intent on plugging leaks than past presidents, notwithstanding his promises of greater transparency. Critics note that in his first term he prosecuted twice as many leakers as all previous presidents. Small numbers can deceive, though. The total number of prosecutions under him is six. According to Columbia University law professor David Pozen, that number amounts to 0.3 percent of the leaks referred to the Justice Department for possible criminal action.
But there are grounds for anxiety. As we have learned — or relearned — from the conduct of the Internal Revenue Service in targeting tea party groups, we can’t blindly trust government employees to follow the rules. The problem with the seizure of AP’s phone records is that we have only the investigators’ word that they didn’t abuse their power.
For that, we can put some blame on the Supreme Court. It has long taken the bizarre view that information shared with “third parties,” like phone records and bank statements, is not private, since you’ve already divulged it to strangers at Verizon and Citigroup.
As a result, police and prosecutors can get this kind of stuff without having to persuade a judge to grant a search warrant — a requirement that would help keep law enforcement on the straight and narrow. Holder’s defense would be far more reassuring if a federal court had agreed this subpoena was the sole way to get information critical to national security.
Maybe someday the Supreme Court will recognize that technological advances have made a joke of its approach to privacy. In the meantime, though, there is no reason an administration committed to a free press can’t propose legislation to mandate outside scrutiny of such steps.
The administration, in fact, announced recently it would support a federal “press shield” law that would limit the circumstances under which a reporter may be forced to disclose information — including, possibly, phone and e-mail records. If investigators wanted such documents, they’d have to get a judge to agree.
Good idea. Holder and his subordinates may be models of humility and self-restraint in carrying out their duties. But right now, the AP and the public could be excused for saying: Let’s not take that on faith.
STEVE CHAPMAN’S column is distributed by Creators Syndicate Inc.