A couple walk past the offices of the Associated Press in Manhattan, New York May 13, 2013.
Today’s scandal: the Justice Department targets the Associated Press in a search for government employees who may have leaked classified information.
The question is, how was this different from previous government attempts to track down inside sources who leaked secrets—as in the Valerie Plame/Scooter Libby fracas during the Bush Administration?
There is one glaring difference. In the Plame case, the Justice Department openly subpoenaed the records of the journalists who reported the story—Matt Cooper, then of TIME, was one—and those journalists had the option of given up their records or going to jail. That’s the way it has worked in the past. There is a disputed grey line within First Amendment rights—journalists have a responsibility to protect our sources, government has a responsibility to protect classified information (such as the identities of the CIA’s non-official cover operatives like Valerie Plame). It isn’t pleasant, and there are legitimate differences about where First Amendment rights end and national security begins, but it is open and straightforward process.
Apparently, what has happened in this case, is that the Justice Department short-circuited prior practices, received secret subpoena authority (from the FISA court?) and covertly went after the information that it had requested in the past. That seems to be a substantial rewriting of the rules, a significant truncation of First Amendment rights.
I’ve gotten flack from the civil liberties community in the past. I’m not a First Amendment absolutist. I believe that the government has a responsibility to prevent terrorist attacks, which includes the right to track the messages of suspected terrorists. It also has the responsibility to keep the secret technologies used in this effort secret—which was apparently the bright line in the AP story. (It may have revealed previously covert methods the government used to prevent an Al Qaeda attack.)
Before I pass judgment in this case, I need to know the following:
1. Why were the usual methods—public subpoenas etc—not used in this case?
2. Has the government changed the rules with regard to journalists seeking covert information?
3. If so, what are the new rules?