Editorial: Overreaching federal investigation of leak to AP threatens press freedoms

Published: Wednesday, May. 15, 2013 - 12:00 am | Page 16A
Last Modified: Wednesday, May. 15, 2013 - 9:04 am

Protecting national security is one thing. Fishing expeditions that could intimidate and impede important watchdog reporting are another matter entirely.

The Justice Department certainly appears to have gone too far in trying to ferret out who leaked information on a secret CIA operation that foiled an al-Qaida plot to bomb a U.S.-bound airliner last year around the first anniversary of the killing of Osama bin Laden.

According to the Associated Press, federal prosecutors secretly seized phone records for April and May 2012 not only from the reporters and editor involved in that story, but from more than 20 phone lines in the news cooperative's offices in Washington, D.C., New York and Hartford, Conn., that house more than 100 journalists, as well as several of their personal phones.

While the records would not reveal what was said during the calls, they would show the phone numbers of people or agencies that reporters called, potentially including whistle-blowers and confidential sources. The AP is right in calling the sweeping dragnet an unjustified and unprecedented intrusion into its newsgathering. All Americans, not just defenders of press freedom, ought to be alarmed by this threat to the First Amendment.

It is eerily Nixonian in its scope – and yet another scandalous distraction in the early months of President Barack Obama's second term. The White House can try to distance itself and claim that Obama believes strongly in an unfettered press, as spokesman Jay Carney repeatedly did Tuesday under withering questioning from the press corps.

But when the president has bragged about how aggressively his administration has gone after national security leaks – "zero tolerance," he has said – it doesn't wash.

During Obama's first term, the Justice Department prosecuted six former and current government officials under the 1917 Espionage Act. Under all previous presidents, there were only three such prosecutions. Some cases carried over from the Bush administration, there has been bipartisan support for a tougher stance after 9/11, and technology makes it easier to track emails, phone calls and other communications. Still, the Justice Department has to decide to pursue the cases.

The one involving the airliner plot is one of at least two currently being investigated. The AP story, published last May, reported that al-Qaida operatives had devised a new bomb that would not contain metal to evade airport security, but that the CIA seized the device before terrorists bought any plane tickets.

Attorney General Eric Holder, who announced last June he had appointed a U.S. attorney to probe the leak, called it one of the most serious he has seen. "It put the American people at risk – and that is not hyperbole," he told reporters Tuesday.

Holder, who removed himself from supervising the investigation because he had been questioned, nonetheless said that prosecutors have followed all department rules. Among them is that phone records from news organizations can be subpoenaed only after "all reasonable attempts" have been made to get the information from other sources.

The Obama administration is telling Americans to trust its assurances that seizing so many phone records from so many reporters was proper and necessary. That's a lot to ask.

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