By Rachel Brody |
On Monday, the Department of Justice admitted that it had seized two months worth of phone records from a group of reporters working for the Associated Press. It's widely believed that the records were collected as part of Justice's investigation into an AP story about a thwarted terror plot in Yemen. Last May, the news wire reported that the CIA had stopped a plan to detonate a bomb on an airliner on the anniversary of the killing of Osama Bin Laden.
"This was a very, very serious leak," Attorney General Eric Holder said Tuesday. "I've been a prosecutor since 1976 – and I have to say that this is among, if not the most serious, in the top two or three most serious leaks that I've ever seen. It put the American people at risk – and that is not hyperbole." s(Holder recused himself from the decision to collect the phone records because the FBI interviewed him as part of the investigation.)
The Obama administration has been far more vigorous than its predecessors in cracking down on leaks. As the New Yorker's Jane Mayer reported, it "has been using the Espionage Act to press criminal charges in five alleged instances of national-security leaks—more such prosecutions than have occurred in all previous administrations combined." Putting journalists in the cross hairs, however, has brought a wave of condemnation down upon the administration.
The New York Times editorial board called the episode "a fishing expedition for sources and an effort to frighten off whistle-blowers." The Washington Post editorial board added, "Whatever national-security enhancement this was intended to achieve seems likely to be outweighed by the damage to press freedom and governmental transparency." The Reporters Committee for Freedom of the Press, along with 50 news organizations, sent a letter to Holder saying, "none of us can remember an instance where such an overreaching dragnet for newsgathering materials was deployed by the Department, particularly without notice to the affected reporters or an opportunity to seek judicial review."
The Obama administration has said that it does not believe there is so-called "reporter's privilege," the ability of reporters to protect their sources even in the face of a government investigation. "There's no privilege in the first place," said a Justice Department lawyer during a case against the New York Times. While in the Senate, President Obama supported a reporter's shield law – which would protect journalists from having to identify their sources – but he helped prevent one from becoming law after he won the Oval Office. On Wednesday, Obama once again threw his support behind a shield law, asking Sen. Chuck Schumer, D-N.Y., to introduce one in Congress,
So should there be such a thing as "reporter's privilege"? Here is the Debate Club's take:
Randall Eliason Professorial Lecturer in Law at George Washington University Law School
Michael Berry Media Lawyer and Partner at Levine Sullivan Koch & Schulz, LLP