The Associated Press is right to be furious about the Justice Department’s decision to look at its phone records. But let’s be clear about what makes the AP case “scandalous” – and what does not.
Having been a journalist for many years, I know the value of confidential sources. Some important information comes from people who do not want their names used. If reporters can be spied on, those sources will not talk.
The government also has a right to control leaks of classified information. But there have to be limits. Ideally, investigations should focus entirely on potential leakers, not reporters.
While leaking official secrets can be a serious crime, it is usually not illegal for reporters to receive or publish them. Because of that, spying on journalists should be a last resort. When it’s done, the snooping should be limited to extreme cases and supervised by a judge.
Here is where we find the real scandal. What the Justice Department did to the AP was perfectly legal under current law. Even though the news service was not accused of any crimes, the records were fair game. That should change.
The AP believes its constitutional rights have been violated and says it might sue the feds. I hope it does and I hope it wins. However, the best and quickest fix would be for Congress to act. The federal media shield bill deserves quick passage. President Obama should sign it.
That brings us to another scandal. To solve this problem, Washington will have to put the First Amendment ahead of partisan gain. That might be hard to arrange.
At a House Judiciary Committee hearing on May 15, Republicans seemed most interested in painting the situation as a White House scandal. (When the focus shifted to the Boston bombing case, Rep. Louie Gohmert’s defense of his asparagus provided some needed, if unintended, comic relief.)
As misguided as the AP investigation was, there is no reason to believe the president was involved. Nor is there reason to think information was being collected for political purposes. It also would be hard to accuse the Justice Department of acting illegally. The feds were pursuing a legitimate criminal investigation of a serious leak. Ethically, investigators went too far. Legally, though, they were coloring inside the lines.
There is no Watergate-like crime here. Instead, we have a situation that requires mature, bi-partisan action. Congress could quickly and easily rein in the Justice Department’s ability to spy on journalists. Once all the hyperventilating about “scandals” slows down, I hope they find the time to do that.