WASHINGTON, D.C. (May 17, 2013) -- The National Association of Black Journalists (NABJ) is deeply concerned about the Justice Department’s secret seizure of office and personal telephone records of journalists at The Associated Press. After reviewing the subsequent letter to the AP from the agency, we believe the Justice Department has failed to justify this broad intrusion on the constitutionally protected rights of a free press.
This act is an affront to, and a possible violation of, the First Amendment, which prohibits the government from monitoring, harassing or controlling the work of the press. These protections are intended to guarantee the free delivery of news and information from a source not licensed or controlled by the government.
These protections have been upheld and reinforced in decades of Supreme Court decisions.
The Justice Department says it obtained the AP records, without notifying the AP in advance, as part of a criminal investigation of national security leaks by the Obama administration. The Justice Department has declined to provide specifics about the probe.
It has been widely reported that the goal of the investigation is to identify a confidential source used in an Associated Press story published May 7, 2012. The story relied in part on an unnamed source in reporting a classified CIA operation that foiled a terror attack planned on U.S. soil.
A government seizure of journalists’ phone records is, by any measure, highly unusual in the United States. The fact that it was done covertly is all the more troubling.
On matters involving the press, the Justice Department follows a policy carefully crafted to consider First Amendment protections. The policy requires that all other efforts be exhausted before proceeding with a seizure.
Usually, the news organization is informed in advance and both sides discuss how to narrow the scope of the probe. The approach also provides the news organization an opportunity to raise a legal challenge, if necessary.
Instead, the Justice Department obtained the records without notifying the AP in advance. The Justice Department declined to disclose details of the investigation or what it would do with the records once the investigation is closed.
U.S. Attorney General Eric Holder has said investigators "followed all of the appropriate Justice Department regulations.” Holder has said the alleged leak to the AP is "if not the most serious, it is within the top two or three most serious leaks that I have ever seen. It put the American people at risk, and that is not hyperbole.”
After the Sept. 11 terror attacks, the government often has cited national security threats to justify withholding information from the press or trying to force journalists to reveal their sources.
But the First Amendment includes no exception for government interference in the workings of the press even if the nation’s security may be at stake. That said, news organizations regularly decline to report sensitive information that might endanger lives, often at the request of the government.
If the seizure of records is as broad and unfocused as the AP has claimed, the government now has unparalleled knowledge about the news-gathering operations of one of the world’s largest press organizations. That is an unsettling thought.
The Justice Department has compromised the AP’s ability to keep private the identities of sources on any number of stories beyond the subject of the investigation. The press can’t fulfill its duty to independently speak truth to power if it can’t protect its sources, particularly against retaliation by the government.
The government has the right to smoke out internal leaks and a duty to protect the nation against threats, but not by violating the constitutional protections for a free press.
We support the Associated Press’ demand for the return of its records and destruction of all copies. We also call on the Justice Department to fulfill its duty as the nation’s top law-enforcement agency, starting with its own conduct.
advocacy group established in 1975 in Washington, D.C., NABJ is the largest
organization for journalists of color in the nation, and provides career
development as well as educational and other support to its members worldwide.
For more information, please visit www.nabj.org.