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Editorial: Justice Department scandal shows need for federal shield law

Thu., May 16, 2013

The U.S. Justice Department’s spying on the Associated Press was an underhanded act that ought to frighten everyone. Rather than ask the news agency for information about alleged leaks of national security information, the department ignored its own guidelines and went straight to the phone companies with wide-ranging subpoenas.

Here’s the specific Justice Department rule in such cases:

“Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought.”

AP was in no position to destroy the records kept by the phone companies, so notifying the news agency would not have compromised the investigation. But a head’s up would have triggered a process through which a court would decide whether those records could be turned over. A key consideration would be whether all other avenues in obtaining this information had been exhausted. If the answer was no, the subpoenas would be quashed.

The executive branch of government should not be the controlling authority on these questions. The president is charged with keeping Americans safe. Nobody doubts that this is a daunting task. That’s why a different branch of government – the judiciary – must be involved to protect civil rights. News sources and whistleblowers need assurances that the media won’t become an arm of law enforcement.

By failing to notify AP of these subpoenas, the Justice Department bypassed this vital check on executive power. Congress has absolved the phone companies of responsibility by granting them immunity from lawsuits for turning over the records. The courts are the only recourse for journalists – and all citizens.

U.S. Attorney General Eric Holder told Congress on Wednesday that an Associated Press article about a foiled terrorist plot constituted a serious breach of national security. However, the government’s lawyers averted any scrutiny of this rationale when they bypassed judicial oversight. In doing so, they also forfeited credibility.

At a press conference on Wednesday, President Barack Obama said that this case called for the revival of a federal shield law bill that sailed through the House in 2009 but was scuttled in the Senate. The president’s own objections didn’t help. He wanted it watered down to allow for broader national security exemptions. A strong law would protect journalists and their sources from the kind of government overreach that occurred in this case. Forty-nine states (come on, Wyoming!) and the District of Columbia have such laws.

This Justice Department abuse was unearthed shortly after the Internal Revenue Service scandal. Government has proven repeatedly that it should be scrutinized by its citizens, not the other way around.

It would be a shame if the outrage flared and died out without any solutions. Congress should pass a shield law to ensure that what happened this time can’t happen next time.