An eerie sense of fait accompli accounts for why the story of the Associated Press’s (AP) phone subpoena so offends American legal sensibilities. Last Friday, the AP learned that the Justice Department “had secretly obtained telephone records for more than 20 separate telephone lines assigned to AP journalists and offices, including cell and home phone lines,” according to a company release.
Done, all wrapped up, without any prior notice.
Federal regulations prefer a different scenario:
Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated. These negotiations should attempt to accommodate the interests of the trial or grand jury with the interests of the media. Where the nature of the investigation permits, the government should make clear what its needs are in a particular case as well as its willingness to respond to particular problems of the media.
The next provision of the regulations offers the government an exception to the negotiation rule — one that it clearly used to secretly subpoena the AP’s phone records. In a press conference today, Attorney General Eric Holder was asked about the department’s failure to seek negotiations with the AP. Is the administration going after the media? Holder responded that such an approach is “certainly not the policy of this administration.”
In a story yesterday, the AP all but stated that the Justice Department’s subpoena sprang from a May 2012 AP story about how the CIA “thwarted a plot by al-Qaida’s affiliate in Yemen to destroy a US-bound airliner using a bomb with a new design around the one-year anniversary of the killing of Osama bin Laden.” In justifying the records subpoena, Holder argued that the leak to the AP that triggered the subpoena was a “very serious leak” — even a historically serious leak, the attorney general suggested.
Perhaps the stakes of the case explain why the Justice Department didn’t seek negotiations with the AP. In light of how AP has responded to news of the secret subpoena, it’s unlikely that the news service would have agreed to hand over the records in any case. A lawyer for the AP yesterday told the Erik Wemple Blog that the subpoena was “outrageous.”
So what’s the purpose of the “negotiations” stipulation anyhow? As if any news outlet would negotiate away its sources to the Justice Department.
Here’s where George Freeman comes in. He’s a First Amendment lawyer at the New York law firm Jenner & Block and worked formerly worked as VP and assistant general counsel for the New York Times. In that capacity, he had direct involvement in the case New York Times Co. v. Gonzales, a landmark on the government-media telephone-records front.
Some background: Right after the attacks of Sept. 11, 2001, the federal government undertook investigations of various Islamic charities and any possible ties to terrorism. New York Times reporters Philip Shenon and Judith Miller were on the story, ringing up a couple of charities that, according to news reports, were of interest to federal authorities. According to a court filing, the government asked the New York Times to give up its sources eight months after the stories ran. No dice, came the reply.
Then, two years later, the government did something with massive implications for the current AP dust-up. It “announced its intention to subpoena approximately three weeks worth of Shenon’s and Miller’s telephone records — records that would reveal the identities of the sources to whom they spoke in reporting on a wide variety of matters of critical interest to the public in the aftermath of September 11.”
Meaning, the Justice Department complied with the guidelines’ “negotiation” imperative. By apprising the New York Times of the intent to subpoena phone records, the government — specifically, U.S. Attorney for the Northern District of Illinois Patrick Fitzgerald — gave the newspaper the tools it needed to defend itself. In a September 2004 filing, the New York Times sought “declaratory judgment” in a New York court that the records were protected by the First Amendment. It prevailed.
The legal wrangling didn’t stop there, as the case bounced around in appeals. Ultimately, the federal government got access to some New York Times phone records. However, Freeman recalls, the New York Times was allowed by the federal judge in the case to screen the records before they were turned over to the government to protect the privacy of the reporters. That step, obviously, isn’t available to a news outfit that has been secretly subpoenaed.
Says Freeman of the heads-up delivered by the government: “Essentially there was a negotiation that didn’t go anywhere, but it gave us time to go to court,” he says. Perhaps the Justice Department learned something from that experience.
The contrast with the emerging story regarding the AP couldn’t be sharper, says Freeman. “Here, records were basically seized, without telling AP anything. In a sense, their actions this time around were much more heinous,” says Freeman, noting that the end-around denied AP the chance for court review. “If they didn’t give notice in a leak case like this, why would they give notice in any leak case?”