The free press vs. national security: A false choice?Oct. 19, 2013
(versión española | versão em português)
I am honored to have been asked to speak to you today for a number of reasons.
AP has a long and rich history in Latin America. A lot of people don’t realize that we got our start in Latin America, 167 years ago, when Moses Yale Beach, publisher of The New York Sun, established a service to deliver news of the U.S. - Mexican War. The dispatches left the port of Veracruz by boat and arrived in Mobile, Alabama, where they were carried by horse to Montgomery, Alabama, and from there by stagecoach to the nearest telegraph post to New York. Joining with a group of papers to do this, Beach effectively established The Associated Press.
AP covered Latin America after that of course, and in 1919 we officially began providing our news reports to newspapers there.
Today, AP counts many members of IAPA among its most valued and important customers. More than 450 newspapers and broadcasters in Latin American subscribe to AP’s text, photo and video services, and we thank you for that. AP is committed to providing you the coverage and services you need most, and that you can trust most.
On that front, we’re beefing up our video coverage, with added videographers, and we’ve made our early morning text news report a priority – both in terms of the speed and volume – because we know you value it so much. I’m also happy to let you know today that we will be adding more video to our Spanish Online product. This will provide a wider array of video for your web and mobile ventures -- something you’ve been asking for. More details on that will be coming soon.
And, we have made a commitment to unique and important coverage of your region.
Our correspondent in Honduras, Alberto Arce, for example, is the only correspondent working for a foreign news organization covering that country. In a series of reports that won several prestigious prizes and garnered international attention, Arce -- at great personal risk -- has documented the issues of violence and instability that every day Hondurans face. His stories ran in media throughout Honduras and Latin America.
But as important as this long business relationship with members of IAPA are the values that we at AP share with you: accuracy, objectivity, transparency, responsible journalism, the need to fight against government overreach, and the mission to hold institutions accountable for their actions. These functions are vital to a working democracy. But they are under threat throughout the region and the world.
And that’s what I want to talk to you about today.
Like all of you, AP has a long legacy of fighting for press freedoms and access to information and a dedication to accurate, independent news. Over our-167 year history, 31 AP reporters have given their lives in pursuit of this news. Many of you, I know, face challenges in carrying out your mission that, frankly, make what we experience in this country pale in comparison.
The First Amendment, enshrined in the U.S. Constitution, gives journalists in this country protections that many nations don’t have. But those rights were threatened in an incident just a few months ago.
Let me recap what happened, how it was resolved -- and the implications for all of us.
On May 7 last year, AP published a story on a foiled plot by an al-Qaida affiliate in Yemen. Al-Qaida was planning to use a new, sophisticated bomb to destroy an airliner headed for the United States. Our story revealed that the CIA had thwarted the attack, which was intended to coincide with the anniversary of the killing of Osama bin Laden.
Now this was a real scoop – broken, incidentally, by two longtime AP national security journalists who shared last year’s Pulitzer Prize for investigative reporting.
It was not, however, a surprise to the U.S. government: As the story itself pointed out, AP held the report for five days at government request, because the sensitive operation was still underway. Only after the administration assured us that their security concerns had been allayed did we release the story.
The story was important on its own merits: Don’t Americans have a right and need to know that such an attack was being plotted and that their government was able to prevent it?
But it also brought into question a statement by the White House.
Just two weeks earlier White House spokesman Jay Carney had said, “We have no credible information that terrorist organizations, including Al-Qaida, are plotting attacks in the U.S. to coincide with the anniversary of bin Laden's death."
And here was AP finding that, in fact, the CIA had been in the middle of foiling exactly such a plot. It turns out that the person who was to carry the bomb was actually a double agent working with the CIA, the Saudis and the British.
The story received wide attention and, soon after, the U.S. Department of Justice announced that it was launching a leak investigation and appointed a U.S. attorney to head it up.
Now, fast forward one year.
In May of this year, we received an email from the Department of Justice informing us it had secretly seized records for 21 AP phone lines over most of a 40-day period around the time that our story was released. I was actually in Latin America at the time, visiting customers and bureaus and flying from Mexico City to Rio and then on to Sao Paolo before heading home.
These were not just the phone lines of our investigative team. They are the general office numbers where as many as 100 reporters and editors work. Thousands of phone calls were swept up by our count.
This unprecedented intrusion into AP’s newsgathering records by government officials was so broad, so overreaching and so secretive that it violated the protective zone of our First Amendment.
Now, we do not dispute that the government has the right to pursue those who leak classified information. This administration has prosecuted leakers like no other in this country’s history.
But the Justice Department has rules about subpoenas that target the press. These rules date back to the Watergate era – and require that any demands “be as narrowly drawn was possible.” They also require news organizations be notified of a subpoena in advance, giving them time to challenge in the courts – unless doing so would substantially impair the integrity of the investigation.
In the sweep of AP phone records, the Department of Justice leadership violated its own rules.
First, the subpoena was not focused as narrowly as possible: It was overbroad. The telephone records seized included not just the work, cell and personal home numbers of individual AP journalists, but general AP numbers in New York, Washington and Hartford, Conn., and AP’s main phone number in the U.S. House of Representatives press gallery. It included incoming and outgoing calls.
This was hardly a surgical strike on a few carefully chosen targets; it was an overbroad and sloppy fishing expedition into a wide spectrum of AP news journalists -- most of whom had nothing to do with the issues in question.
The sweep of AP records may seem minor in light of news that the National Security Agency has collected the entire country’s phone records and followed leaders in other countries -- an issue I know is of concern to many of you. But this case is different. The government was not collecting AP records to load into a database. It has a dedicated team of prosecutors poring over them to locate the source of AP’s reporting. And in doing so, accessing newsgathering information that is protected by the First Amendment against precisely this type of intrusion.
The second way the Department of Justice violated its own rules was in executing this subpoena without notice to AP, which meant AP could not seek judicial review of the subpoena. They claimed the exception applied here – and that notifying AP would substantially impair its investigation.
But how could that be? To begin with, there is no way AP could tamper with the records, which are in the possession of third-party phone carriers.
The Justice Department 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 in public investigations – 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.
Had the Justice Department come to us in advance, the scope of the subpoena might have been narrowed. If we did not agree, then a court could decide which was right. There was never that opportunity. Instead, Justice acted as judge, jury and executioner – in secret.
They may well have been acting in good faith. But, if so, I suspect they got so single-mindedly focused on the leak investigation that they overlooked the First Amendment implications of their actions.
The outrage to the DOJ’s actions was swift, loud, and widespread. Looking back on it now, I believe the Justice Department was blindsided by the response.
Many of you here covered the issue and stood up to voice your concern, which we at AP greatly appreciated. Media weighed in, as did the public. Both Republicans and Democrats took to waving the banner of the First Amendment at the White House. It seems the seizure of AP’s phone records is about the only thing the U.S. Congress has been able to agree on!
We immediately demanded action on a number of fronts, including that the Department safeguard our records to prevent any misuse. The Justice Department gave us assurances that our phone records had been and will continue to be walled off, protected and used for no other purpose other than their current leak investigation. But that was not enough to ensure that something like this would not happen again.
AP also called for the guidelines to be updated and strengthened, and that the administration take strong action to ensure heightened protections for journalists.
To their credit, the White House acted swiftly. President Obama asked the Department of Justice to review and update the guidelines, and Attorney General Eric Holder convened journalists, lawyers, and other experts to produce comprehensive revisions to the guidelines that achieved almost all of AP’s and the industry’s demands and that also called for legislation that would achieve the rest. We are quite pleased with these proposed revisions. If they had been in place to begin with, we believe the Justice Department would not have been able to seize our phone records in the secretive manner they did.
In the updated guidelines, the Justice Department determined that advance notice of a subpoena should be given to the media in all but the rarest of circumstances. This is critical as it enables the press to challenge the subpoena in court. The Department also improved the guidelines with additional procedural safeguards and updated them by bringing in all forms of communication, including email and text messages. The Justice Department further made clear that it will not prosecute a journalist for doing his or her job.
We are gratified that the Justice Department took our concerns seriously and has taken these critical first steps to provide greater protection for journalists across the industry. The guidelines provide more protection to journalists than courts historically have provided, so we are optimistic about this development. But you can bet that we will be watching closely to make sure they are implemented and enforced.
Meanwhile, the ruckus over our phone records has breathed new life into the passage of a federal shield law to protect all journalists. Last month a key Senate committee voted to approve it, and The White House has also expressed support for such legislation. That doesn’t guarantee passage, of course, but we are hopeful.
Nonetheless, the Department of Justice secret seizure of our phone records was one of the most blatant violations of the First Amendment that AP has ever had to deal with. And its impact goes far beyond the specifics of this one case.
What I have heard from journalists around the United States is alarming. Longtime and trusted sources have become nervous talking to us -- even on stories unrelated to national security. Government employees we once checked in with regularly will no longer speak to us by phone. Others are reluctant to meet in person.
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 the Justice Department’s actions have intimidated both official and nonofficial sources from speaking to them as well.
Now, the government may love this. But beware a government that loves secrecy too much.
We also learned some important lessons.
- For one, we learned the importance of having a strong set of values -- and sticking to them.
- Second, that AP’s long history of vigorously and successfully defending the First Amendment and opposing government overreach, and supporting others who do so, meant we were taken seriously. The Justice Department knew we would not back down and would not go away quietly.
- And we learned that our record of accuracy, objectivity, and fairness helped when calling for the need for government accountability and transparency. Our independence -- no affiliation with the government, no political point of view -- and our sole focus on the news meant that we had many supporters. Our own openness and transparency was consistent with what we were asking for in the government process.
What this shows us is the need to stand by our core mission of responsible journalism, stick to our core values and vigorously defend the First Amendment whenever possible.
What it also shows us is that none of us can ever let our guards down. The attack on journalism -- here in the United States and throughout the rest of the world -- will not cease any time soon. In fact, it will become even more difficult to counter as technology gives governments ever more powerful tools to monitor the actions and communications of its citizens. A free press needs to play a constant and integral role as a check on government overreach.
I believe the government seizure of AP’s phone records has resonated far beyond America’s shores. The freedom of the press enshrined in the U.S. Constitution has been a model and an aspiration for nations and people around the world. The actions by the Department of justice could not have been more tailor-made to comfort authoritarian regimes that want to suppress their own news media. “The United States does it, too,” they can say.
But without a free and unfettered press, the public will hear only what the government wants it to hear.
No one knows this better than you. Nearly a decade ago, many of you gathered in Mexico City to help create a unique and powerful agreement: The Chapultepec Declaration. Noting your diverse backgrounds and cultures, you came together to declare common truths about freedom, among them that true freedom and democracy depend on freedom of the press. And that no journalist or newspaper should be punished for publishing the truth or criticizing the government.
A free and independent press is fundamental to a functioning democracy. It differentiates democracy from dictatorship; separates a free society from tyranny. Governments who try to set up a situation where citizens think they must choose between a free press and security are making a mistake that will ultimately weaken, not strengthen them.
It’s not a real choice. It’s a false choice.
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