The facts are that DOJ agents seized office and home phone records from reporters for the Associated Press, in search of information leaks from officials to those scribes about an ongoing anti-terrorist operation in Yemen. The seizure was conducted, without notice to the reporters or the AP, by officials of an Administration that promised transparency; it has too-often invoked a ‘trust us’ excuse for its opacity.
The tension, of course, involves the government’s duty to ‘protect,’ including the conduct of clandestine operations in the name of Homeland Security. And to ‘serve,’ in terms of ensuring the rights of the people it governs, most notably the First Amendment freedoms of speech and press. In its operations – Especially those designed to protect, government can’t lose sight of its role as servant of a free people. The problem is that the government’s ‘leak’ is a reporter’s ‘source’ – and a free press has been acknowledged since the inception as a fundamental foundation of freedom against government over-reaching. This incident was wrong in so many ways -- let me recount a few.
1 -- No notice. Had the reporters or the AP been notified of the DOJ order, they’d have surely taken the opportunity to challenge it in federal court. This is the kind of issue that reporters will go to jail-for, and consider it a badge of honor to do so. That independent review would have balanced the conflicting interests to resolve the press freedom issue. Ironically, in the absence of a federal reporters’ shield law, that review would very likely have gone DOJ’s way, within limitations; it is crucial that such a case be heard.
2 -- It violated the AG’s own internal Guidelines for these cases. The AG’s own Guidelines call for them to seek judicial review in cases like this one, but they didn’t. All we know, so far, about their rationale is AG Mr. Holder’s claim, echoing the court room in A Few Good Men, that this leak was “serious” – how serious? “very very serious.” The problem, of course, being that such a self-justifying statement comes from the very guy who sacrificed his credibility on the issue by allowing the document ‘raid’ in the first place. That’s not the ‘serve’ to be expected from the government.
3 -- It was way over-broad. The Feds seized two full months of records from some 20 reporters. That’s no precision strike, it’s a fishing expedition. And it’s not fly-fishing, either – it’s drift-net trawling. Even assuming they got their prey, what of the bi-catch? What other information did they snag that they should not have?
4 -- It will “chill” new sources from coming forward. Sources reveal themselves to reporters, often at great personal risk, with all kinds of info, for all kinds of reasons. This dragnet-style seizure will “chill” the inclination of new sources to come forward. Normally, reporters can assure them of some level of anonymity – many have gone to jail to keep their promises – but not id they don’t even know what’s been seized until after-the-fact. We don’t know what government mal-feasance will escape disclosure because of this incident, but we can be assured that there will be some.
5 -- It was unnecessary. The AP had already agreed to hold its Yemen-related stories until some later date. That the Feds went ahead despite those assurances suggests that their focus was not the leak, but the leaker. The leak had been staunched – it’s apparent that they were really looking for evidence to build a case against the source. If that’s the case, it could have/should have waited, and been narrowly targeted.
6 -- It was bad politics. As above, the Constitutional Law Prof-in-Chief had campaigned repeatedly on a ‘transparency’ platform. This incident, and others of similar direction, gives the lie to that pledge. Worse, it lends undeserved credence to the Mad tin-foil Hatters, whose suspicions of dark conspiracies now seem less improbable. And worst, it embroils the boss in yet-another paralyzing controversy that will be gleefully milked by his opponents – who need much less of an excuse that this to hog-tie the Congress. To the extent that the Administration must play defense, they can’t promote the agenda they we elected to pursue.
7 -- It was bad management. There should be excellent checks built-into the system to prevent or short-circuit this kind of action. It’s that important. I recall an interview with the then-staff-lawyer at J&J who fielded the first Tylenol contamination reports from the field. The recall was immediate and unequivocal. Asked if he had any doubts at the time, he replied “no – we practice this. The patient always comes first.” DOJ staffers should be at least as well-trained to respond to the service vs. protection issue, and to come down on the side of the First Amendment, immediately and unequivocally.
Finally, for me at least, there is something ironic about this Administration’s fixation on leaks. Every Administration uses them for its own purposes, to massage the public discourse. So it’s not even leaks in principle, but leaks we don’t like that prompted this debacle.
Some protection. Some service. Feel free to complete the Top Ten list I’ve started here.
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