To Stop Overreaches Like the AP Debacle, Congress Must Step Up

The judiciary can't fix this: The Supreme Court has a poor track record protecting journalists from the government.
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Adrees Latif/Reuters

In early 1800, the Philadelphia Aurora revealed that the Senate was secretly considering a bill that would, in essence, have allowed the Federalist Party to set aside the upcoming presidential election. The Senate immediately summoned Philip Duane, the editor, to explain where he'd gotten the information. Duane went into hiding; after Thomas Jefferson defeated John Adams, the case petered out.

But the issue of press sources and investigators has never gone away.

On Monday, the Justice Department admitted that it had secretly seized as much as two months of phone records of the Associated Press. The seizure was apparently part of an investigation into an alleged leak about an ongoing intelligence operation in Yemen. The government says that the leak had put Americans in danger. (The AP denies this.)

The special prosecutor conducting the probe appears to have complied with Justice Department regulations. These require approval by the Attorney General; in this case, Attorney General Eric Holder recused himself because he had earlier been interviewed for the leak probe, and the subpoena was approved by his deputy, James M. Cole. The regulations allow secrecy when notifying the news organization would "pose a substantial threat to the integrity of the investigation."

But the regulations also emphasize that such subpoenas ordinarily are to be narrow. Secrecy is disfavored too -- most records requests are to be resolved by negotiation rather than unilateral action. Previous seizures of records were much narrower, Gregg Leslie, legal defense director of the Reporters Committee for Freedom of the Press, said in an interview Tuesday. In this case, he said, "they showed no respect in paying even lip service to the First Amendment."

Reporters often talk to sources -- within government and outside it -- who provide information only after a promise of confidentiality. Investigators covet their testimony and their notes. For years, it was common to speak of an unwritten "reporters' privilege" that barred legal demands for journalists' information. The undefined "privilege" was rooted in the stern language of the First Amendment, which says that "Congress shall make no law ... abridging the freedom ... of the press."

During the civil-liberties crisis of the 1960s, federal prosecutors used grand juries against dissenters and drug users. In a 1972 case called Branzburg v. Hayes, the Supreme Court managed to muddle the issue so badly that, 40 years later, courts are still arguing about what the justices held.

Prosecutors going after the Black Panther Party (and a few stoners in Kentucky) demanded testimony and notes from reporters. The Court decided, 5-4, that the First Amendment did not protect the journalists. The majority opinion, by Justice Byron White, brushed aside the idea of a privilege: "[W]e cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it." Justice Lewis F. Powell, the let's-all-just-get-along Sandra Day O'Connor of his day, supplied the crucial fifth vote, but wrote a separate opinion to suggest that there actually is a qualified privilege in some undefined circumstances. "[T]he courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection," he wrote.

Since Branzburg, federal courts have split over whether to apply White's broad denial or Powell's tentative acceptance of the privilege. Many judges believed that Powell's reasoning controlled, requiring a balancing test by a court before journalists or their records could be summoned. But in 2003, Judge Richard Posner of the Seventh Circuit wrote an influential opinion brushing that idea aside. The D.C. Circuit followed Posner's reasoning in the case of New York Times reporter Judith Miller. Miller was summoned to a federal grand jury probing whether Bush officials had leaked the identify of CIA case officer Valerie Plame. She refused to testify about her sources, and spent 85 days in jail.

The Branzburg opinion noted that Congress could always enact a statutory privilege. During the 1970s, members of Congress introduced at least 99 bills to do that. But every proposed privilege had exceptions for emergencies and urgent cases; press groups refused to support anything but a blanket privilege. Meanwhile, debates flickered about how a statute should define "journalist." States enacted their own shield laws, until today more than 40 have them -- without much noticeable damage to their law-enforcement efforts.

After the Miller case, members of both parties in Congress tried again. Over a six-year period, three separate Congresses considered bipartisan bills. The proposed legislation would not only have blocked most requests for testimony, but given protection to "third-party" records of news organizations -- like the AP phone records seized by DOJ. One supporter was then-senator Barack Obama. After Obama became president, his administration reversed the Bush Administration's opposition to a statute. In 2010, a proposed shield bill passed the House by unanimous consent, picked up administration support, and seemed headed for passage in the Senate.

Then, in July 2010, Wikileaks unloaded its massive trove of confidential documents about the Afghan war. The drive for a bill came unstuck.

Now it's 2013. The Obama Administration has declared a war on whistleblowers and leaks that dwarfs anything seen since at least the era of Branzburg. I can't fathom why, but that's nothing new. I can't fathom why Obama stonewalled Congress on the Libya intervention; I can't fathom why the Administration is so grudging in explaining the legal basis of the drone war. This vendetta against leakers seems to me beyond all reason.

For people who work for, or talk to, the media, these aren't abstract questions. National security and law enforcement are important, to be sure. But recent history shows that today, just as in the time of John Adams, government officials, with the best of intentions, have a tendency to overreach -- and, when they get away with it, to overreach a bit more.

"Trust us" is bad constitutional theory, and it's leading the administration astray.

Now would be an excellent time for a new debate about First Amendment breathing room for journalists. How broad should it be? How much protection should we offer for phone records and the like? When the government wants to serve a massive secret subpoena for journalist's phone records, might it not be wise to have a court take a look too, rather than the Attorney General, or the Deputy? Do we need a statutory definition of "journalist"?

A statute would be a lot better than the present system. Could it happen?

In 2010, the shield law legislation was co-sponsored by two respected Republicans -- Sen. Richard Lugar and Rep. Mike Pence were both sponsors.

They're both gone. Will current Republicans step up?

Signs aren't good. With crisis swirling around us, the current House calendar centers on a 37th vote to repeal Obamacare. I fear the members will go from there straight to impeachment on one ground or another, bypassing the bothersome law-making phase altogether.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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