Policy, discretion guide media sources probes

Wednesday - 5/22/2013, 3:26am EDT

Associated Press

WASHINGTON (AP) -- It was a rare moment in relations between the media and the government: In 2008, FBI Director Robert Mueller called the top editors at The New York Times and The Washington Post to apologize because the bureau had improperly obtained reporters' telephone records four years earlier.

The extraordinary call was an admission that the FBI's actions violated Justice Department policy about seeking journalists' phone records. But nothing about what the FBI did in 2004 appeared to run afoul of any law.

The Justice Department's latest effort to examine whom journalists are talking to -- the secret subpoena of Associated Press phone records from April and May of last year -- demonstrates how government investigators are guided more by policy and the judgments of high-ranking officials than by specific laws or, in this case, the need to satisfy an independent federal judge.

The AP case involves a criminal investigation into who gave information to the news cooperative's reporters about a foiled bomb plot in Yemen. The AP's May 7, 2012, story attributed details of the operation to unnamed government officials.

The government informed the AP 10 days ago that it had secretly obtained records for 21 phone numbers, including those of the reporters on the bomb plot story. The department's guidelines, first drafted in the wake of Watergate-era government abuses, call for news organizations to be informed before investigators ask phone companies for records unless doing so would compromise the investigation.

Attorney General Eric Holder said the story was the result of "a very serious leak, a very grave leak." AP President and Chief Executive Officer Gary Pruitt called the gathering of phone records a "massive and unprecedented intrusion" into how news organizations gather the news.

New developments emerged Monday in another case that has led to the indictment of an official for revealing classified information. Federal prosecutors got a search warrant for the private emails of Fox News reporter James Rosen and used building security records at the State Department to track his movements as they sought to identify whom he had relied on for classified information in a story about North Korea.

The tension over balancing the government's duty to protect national security and the media's role as public watchdog is long-standing. Take away protections for reporters' confidential sources and "the people who know what's happening become fearful, and they will not come forward with information the public may find very valuable," said Lucy Dalglish, dean of the University of Maryland's journalism school. "It's a classic chilling effect."

But neither, said George Washington University law professor Orin Kerr, does the public want a world of free disclosure by government workers with no opportunity for the government to investigate. "It requires a very delicate balance. We wouldn't want either extreme," Kerr said.

One possibility for compromise is a long-discussed federal media shield law to go along with similar laws in most states. Even as President Barack Obama defended his administration's aggressive pursuit of leakers of government secrets, he also said Congress should consider a law that generally would protect journalists from government subpoenas and allow judges, in rare instances, to decide whether national security concerns trump press freedoms.

Sens. Chuck Schumer, D-N.Y., and Lindsey Graham, R-S.C., said they would introduce a new version of a media shield bill that Congress last considered four years ago.

The congressional proposals -- and there have been many over the years -- are partly a response to a 1972 Supreme Court ruling that nothing in the First Amendment protects reporters from being called to testify before grand juries. Justice Byron White's majority opinion scoffed at the idea that it would dry up confidential sources. He said Congress was free to give journalists, or "newsmen" in that era's parlance, additional protection under federal law. That case arose in the context of the government's pursuit of Black Panthers and also drug users in Kentucky.

But the 5-4 ruling in Branzburg v. Hayes also has bedeviled generations of prosecutors, media lawyers and judges because one of the five justices in the majority, Lewis Powell, wrote a concurring opinion that suggested that maybe the court's holding was not as absolute as it sounded. Powell said courts would consider the competing claims of prosecutors and journalists case by case, and called judges to strike "a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."

At the time, Justice Potter Stewart charitably referred to Powell's opinion as "enigmatic" and hoped that it would lead to "a more flexible view in the future."