National security, liberty and role of the free press in a digital ageJune 9, 2014
President and CEO
The Associated Press
National Security, Liberty and the Role of the Free Press in a Digital Age
World Association of Newspapers
Like many of you, AP has a long legacy of fighting for press freedom and access to information that the public needs to know – whether that is in government or on the battlefield. And, like most of you, we are dedicated to providing accurate, independent news.
The First Amendment, enshrined in the U.S. Constitution, gives journalists in the United States protections that many nations do not have. But those rights were threatened recently in an incident involving The Associated Press and the U.S. Department of Justice. I want to recap what happened, how it was resolved and the implications for all of us, because this case speaks directly to the topic of our panel today.
In May of 2012, AP published a story on how the CIA had foiled a plot by an al-Qaida affiliate in Yemen. The terrorist group was planning to use a sophisticated new bomb to bring down an airliner headed to the United States in an attack intended to coincide with the first anniversary of the killing of Osama bin Laden.
Now this was a real scoop – broken, incidentally, by two longtime AP national security journalists who earlier shared the 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.
As you might imagine, the story received extensive attention and soon after the U.S. Department of Justice announced it was launching an investigation to find out who might have leaked the information to AP.
A year later, in May of 2013, we received an email from the Department of Justice telling us that it had secretly seized the phone records for 21 AP phone lines over a 40-day period, around the time the story was released. This meant the department had in hand records of thousands of calls and text messages – both incoming and outgoing.
Now, the government has a right to pursue such an investigation. But they must comply with their own rules and they must obey the U.S. Constitution. They did neither.
Here’s what was wrong and illegal about their action:
First, the investigation was overbroad and not targeted. The telephone records seized included not just the work, mobile and personal home numbers of individual AP journalists, but general AP numbers in New York and Washington, D.C. The U.S. Department of Justice had secretly seized AP’s phone records of thousands of calls to and from hundreds of journalists working on hundreds of news stories.
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 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 U.S. National Security Agency has collected the entire country’s phone records, in fact, maybe the whole world’s. But this case is different.
The government was not collecting AP records to load into a database. It was 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 they did not give us notice, which meant AP could not seek judicial review. They claimed an 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: the FBI director publicly announced it nine days after our story ran.
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 Department was judge, jury and executioner – in secret.
They may well have been acting in good faith. I suspect they were but prosecutors can sometimes get so single-mindedly focused on a leak investigation that they often overlook other things – like the U.S. Constitution.
The reaction to the Justice Department action was swift and it was loud. Media throughout the United States – and throughout the world – protested. Many of you protested, and I want to thank you for your support. Republicans and Democrats in Congress agreed the action was outrageous – and if you’ve been following our government you know that it’s probably the only thing they’ve agreed about in years.
For our part, we called on the Justice Department to safeguard our records from misuse and to strengthen the rules related to how information is obtained from journalists.
So big was the reaction, that President Obama called on the Department of Justice to review and update the rules. And then, something truly remarkable happened: We got almost all of what we asked for. The Department of Justice strengthened their own rules about obtaining information from journalists, adding significant new protections and safeguards. If these revised rules 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.
The Justice Department further made clear it will not prosecute a journalist for doing his or her job. It’s nice to know that it’s not a crime in the United States to commit journalism.
I was the chief critic of the Justice Department in this whole controversy, so it is important for me to give credit to the Justice Department for improving the rules related to obtaining information from journalists. The improved rules are indeed a bright silver lining to the dark cloud of the seizure of AP’s phone records. As you can imagine, we will be watching closely to make sure they abide by the new guidelines.
This was one of the most blatant violations of the First Amendment in AP’s 168-year history. The impact goes far beyond the case itself.
For one, my tax returns will almost certainly be audited. I’ll be ready for that. But seriously, this dispute has important ripple effects.
It has created a very real chilling effect on news sources. What I have heard from journalists 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. I suspect they do but beware a government that loves secrecy too much.
Without a free and unfettered press, the public will only hear from official sources and we’ll only know what the government wants us to know. That’s not what the framers had in mind when they drafted the First Amendment. You don’t need a First Amendment if that’s the way you’re going to run the country.
This controversy also demonstrates the awesome and growing power governments possess to monitor the actions and communications of citizens and the media. That technological reach from corporations and governments will only increase. This genie is not going back in the bottle.
The lesson for all of us is that we must never let our guard down. We must always remain vigilant, for a free press is the most effective check on this growing concentration of power.
The government’s seizure of AP’s phone records has resonated far beyond America’s shores. When I visited North Korea last year, where we have a bureau, people there knew all about it.
The freedom of the press enshrined in the U.S. Constitution has been a model and a beacon of 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 media. “The United States does it, too,” they can say. It shouldn’t be this way.
A free and independent press is fundamental to a functioning democracy. I know you hear that from people like me and may roll your eyes. And I know the media gets stuff wrong. We are, after all, the first rough draft of history. Think of the output every day: 3,000 photos; 100 news, entertainment and sports videos; and 2,000 individual text stories. And that’s just the AP – the most comprehensive news report in the world.
Winston Churchill famously said that democracy is the worst form of government – except for all the others. I’d adapt that to say that media is the worst check on government – except for all the others.
A free press is all that we’ve got. It differentiates a democracy from dictatorship, a free society from tyranny. Governments that set up a situation where their citizens must choose between a free press and security are making a mistake that will ultimately weaken them.
It’s not a real choice. It’s a false choice.
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Erin Madigan White
Senior Media Relations Manager
The Associated Press
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