June 19, 2013
President Obama (left) and Eric Holder (Pablo Monsivais/Associated Press)
President Obama (left) and Eric Holder
(Pablo Martinez Monsivais / Associated Press)

Following the news that the Department of Justice (DOJ) had been snooping on the communications of the Associated Press (AP) and Fox News reporter James Rosen in connection with leak investigations, journalists spoke of the likelihood that the government actions would complicate the work of reporters. In a speech today in Washington, AP President and CEO Gary Pruitt put forth some details* on that front:

The actions of the DOJ against AP are already having an impact beyond the specifics of this case. Some longtime trusted sources have become nervous and anxious about talking with us — even on stories unrelated to national security. In some cases, government employees we once checked in with regularly will no longer speak to us by phone. Others are reluctant to meet in person.

In one instance, our journalists could not get a law enforcement official to confirm a detail that had been reported elsewhere.

Imagine: officials were so fearful of talking to AP they wouldn’t even confirm a fact that had already been reported by numerous other media.

And I can tell you that this chilling effect on newsgathering is not just limited to AP. Journalists from other news organizations have personally told me that it has intimidated both official and nonofficial sources from speaking to them as well.

Now, the government may love this. But beware a government that loves too much secrecy.

Pruitt blasted the breadth of Justice’s secret subpoena in the AP case, which stemmed from a story in which the wire service reported that an al-Qaeda bomb plot originating in Yemen had been foiled by the CIA. As has been reported, the Justice Department took records on 21 AP phone lines. Just how overbroad was the seizure? Pruitt: “Among the AP phone records taken by the DOJ was a switchboard number at the former location of our Washington bureau that we vacated more than six years ago. It also included a line that belonged to a reporter when he worked in Hartford, nearly seven years before.” Talk about grabby.

What really irked the AP were Justice’s stealth actions. The department proceeded with its subpoena without notifying the wire service about what it was doing. Justice guidelines require notice unless it’s determined that doing so would impair the investigation. Apparently Justice determined that impairment would have occurred — a notion that Pruitt challenged. How would notifying the AP have crimped Justice’s work?

“To begin with,” Pruitt argued, “there is no way AP could tamper with the records, which are in the possession of third-party phone carriers. DOJ also claimed that notifying AP would tip off the leaker. But the leaker certainly already knew of the investigation: FBI director Robert Mueller publicly announced it nine days after our story ran. Furthermore, that kind of reasoning — about tipping off leakers — would by extension seem to apply to any case. The press would therefore never be given notice and the courts would never be involved. The exception would effectively swallow the rule.”

The only part of Pruitt’s pitch that strikes the Erik Wemple Blog as off-base is this claim: “Had the DOJ come to us in advance, we could have helped them narrow the scope of the subpoena.” Indeed: The AP could have helped Justice narrow the scope of the subpoena — to nothing at all. News organizations aren’t famous for cooperating on any level with government quests to ascertain top-secret sources. The default response to a subpoena, in contrast, is an effort to quash it. In fairness to Pruitt, he cited that prospect as well: “If AP and the DOJ did not agree, then a court could decide which was right. There was never that opportunity. Instead, the DOJ acted as judge, jury and executioner — in secret.”

The fix for all these ills? In Pruitt’s view, five measures will help, and they include advance notice of subpoenas, judicial oversight, updated Justice Department guidelines, a federal media shield law and an institutionalized immunity for journalists against prosecution for doing their jobs.

He could have added a sixth: A less voracious law enforcement establishment.

*From prepared remarks.

Erik Wemple writes the Erik Wemple blog, where he reports and opines on media organizations of all sorts.