News organizations and their minions have a way of looking helpless in the face of Justice Department phone-records subpoenas. As noted in this blog, former AP reporter John Solomon was the subject of a secret subpoena back in 2001; he learned about it after the fact, raised a fuss, then Sept. 11 happened. The New York Times got stung by a subpoena a few years later, fought it in court but ended up having to cough up some records. In 2008, The Post and the New York Times found out after the fact that their records had been seized without so much as a subpoena. What can you do?
That’s what the Associated Press is now trying to figure out. It is determined to fight back against the Justice Department’s seizure of phone records covering two months in 2012, says David Schulz, a partner with Levine, Sullivan, Koch & Schulz, which represents the AP. The wire service and its lawyers, says Schulz, are “reviewing our ability” to take countermeasures, even though the records were grabbed some time ago. “To the extent we have rights that were violated, and we believe they were, going to court is an option,” says Schulz. That said, Schulz concedes that the precedents on this front are “not all good,” pointing to the decision in New York Times v. Gonzales, in which the court ruled that the government could indeed subpoena the newspaper’s phone records in connection with stories on Islamic charities in the aftermath of the Sept. 11, 2001, attacks.
Part of the struggle involves going right after the Justice Department. Guidelines on phone-records subpoenas instruct the department to negotiate with the news organization unless such a move would compromise the integrity of the investigation — a determination that Schulz just cannot fathom. “There is no fact that we know that could support [the] claim that notifying would have harmed the investigation…. They were going after records [a] year and a half of old that weren’t in the AP’s possession,” he says, emphasizing that there was no way the wire service could have destroyed them. The AP suspects that the subpoena arose from reporting for a May 7, 2012, story about a foiled al-Qaeda bomb plot originating in Yemen.
“If the Justice Department had some acceptable explanation for why they did this, that could shape our strategy,” says Schulz. He says that the AP’s position has never been that the government doesn’t have the right in limited circumstances to get key records in a criminal case — that’s the law of the land, after all. In this case, however, the “government acted as judge, jury and executioner,” says the lawyer.
At the same time, says Schulz, a media-shield law would help, mainly by inserting the courts as supervision in the process whereby the government goes about getting sensitive information from the media.
“We’re either going to have to go to court or we’re going to have to have the Justice Department acknowledge problems or have Congress step in,” says Schulz. Whatever the case, he says, “We’re not going to go away.”