I once remonstrated about the impact of draconian measures used to counter terrorism on journalists, citing snooping and surveillance cases, particularly in old democracies, where national intelligence services have been eavesdropping on journalists. I cited the case of German Telekom which was caught misusing data retention to spy on journalists and trade unionists and the case of the civil servants at the Dutch Ministry of Social Affairs who admitted they have been hacking into the computers of the GPD news agency and secretly monitoring work prepared by journalists. But all these cases, and they are dozens of them, pale in significance when compared to the White House AP scandal, a massive and unprecedented intrusion.
In this instance, the Department of Justice subpoenaed two months of record related to 20 telephone lines, including the records of major Associated Press bureaux and the home and cell phones of individual journalists.
No journalist in Washington could remember such overreaching action that calls into question the very integrity of the Department of Justice Board and its ability to balance its power against the First Amendment rights of journalists, including matters touching on national security which are at the heart of the case. First Amendment lawyer Floyd Abrams was quoted saying that this was “certainly one of the most intense intrusions by the government into a pressroom that I can remember”.
The Department tried to justify its operation in its effort to discover who told AP about the failed al-Qaeda plot in Yemen. But the AP story about the CIA operation, published in May last year, was not deemed by anybody, not least Obama top counter terrorism’s adviser, John Brennan, to be posing a threat. So what made the Department of Justice’s number two, Deputy General Attorney James Cole take the decision to authorise the subpoena?
In doing so he seems to have broken many of the guidelines as he was reminded in a letter by the Reporters Committee for the Freedom of the Press, signed by 50 media organisations, to his boss Attorney General Eric Holder Jr. The guidelines are specific about the scope of the inquiry, the need to exhaust alternative means of obtaining information, the obligation to inform and negotiate and most importantly to inform media and journalists about their intent.
The IFJ believes that this massive intrusion amounts to press intimidation and is a direct attack on journalists’ rights. No matter their arguments about national security, the US Justice Department officials have driven a coach and horses through the First Amendment and their action will have a chilling effect on press freedom in the United States for years to come.