Yesterday, news broke that the Justice Department obtained two months of phone records for 20 phone lines of AP journalists' office, home and cell phones without their knowledge. AP condemned the "massive and unprecedented" intrusion:
There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters, . . . These records potentially reveal communications with confidential sources across all of the news gathering activities undertaken by The A.P. during a two-month period, provide a road map to A.P.’s news gathering operations, and disclose information about A.P.’s activities and operations that the government has no conceivable right to know.
Privacy and civil liberties groups were equally outraged (See
ACLU and
Electronic Frontier Foundation responses).
The chilling, unjustified surveillance of journalists engaging in First Amendment-protected activities should serve as a wake-up call that the national security surveillance state is real, powerful, and targeting the media under the auspices of "leak investigations." The Justice Department's targeting of AP is related to yet another "leak investigation," not unlike the 6 Espionage Act prosecutions the Obama administration has brought against so-called "leakers," who are really whistleblowers. I've been saying for years - shouting into the wilderness - that the Espionage Act prosecutions are being used as a back-door way for going after journalists, whose thinly-veiled names pepper the indictments.
If the American media and public want to keep what's left of their First Amendment rights, we need to wake up and see this latest attack on free speech for what it is: the government is using the criminal justice system to silence dissenters - a policy completely antithetical to a constitutional democracy that enshrines the freedoms of speech and the press.
My client, National Security Agency (NSA) whistleblower Bill Binney has been publicly raising the alarm about government monitoring journalists for years now.
Over a decade ago, I anonymously leaked e-mails to Newsweek evidencing that the Justice Department committed an ethics violation in its interrogation of "American Taliban" John Walker Lindh, and then tried to cover it up. The Justice Department went after the journalist who published my e-mails, Michael Isikoff, and obtained Isikoff's phone records with me, without either of us, to this day, knowing how. Douglas McCollam wrote an article for the Columbia Journalism Review on my situation, appropriately titled, "Who's Tracking Your Calls? And How Far Will the Department of Justice Go to Burn a Leaker?" Douglas McCollam, Who's Tracking Your Calls?, COLUMBIA JOURNALISM REVIEW, March/April 2004, Issue 2.
New York Times reporter and book author James Risen described how the government obtained his phone records in an affidavit he filed after the government thrice tried to compel him to testify about his sources in the Espionage Act case against former CIA officer Jeffery Sterling:
I have learned from an individual who testified before a grand jury . . . that was examining my reporting about the domestic wiretapping program that the Government had shown this individual copies of telephone records relating to calls made to and from me . . . Around the same time that the Government was making public statements about potentially prosecuting journalists . . . ABC News reported on May 15, 2006, that senior federal law enforcement officials had informed them that the government was tracking the phone numbers of journalists without the journalists' knowledge as part of an effort to root out the journalists' confidential sources. . . I was mentioned by name as one of the reporters whose work the government was looking into.
The
New York Times has
finally woken up to the fact that the Espionage Act prosecutions are a policy:
The development represents the latest collision of news organizations and federal investigators over government efforts to prevent the disclosure of national security information, and it comes against a backdrop of an aggressive policy by the Obama administration to rein in leaks . . .
rather than reporting the Obama administration's record-setting number of Espionage Act prosecutions were
some sort of accident that the Obama administration touted when it wanted to impress the national security state.
The latest revelation about the government infringement on AP confirms what too many whistleblowers (like Thomas Drake, John Kiriakou, and Bradley Manning) and journalists (like documentary filmmaker Laura Poitras) already know about the national security state: when you speak truth to power, the government will use every weapon in its arsenal to silence you.
Justice Department policy requires the Attorney General to sign off on journalist subpoenas, which the policy says should be done only as a last resort when all other efforts to obtain the information have failed. Feel free to call AG Eric Holder and tell him exactly what you think of this First Amendment intrusion: 202-353-1555
And for liberty's sake, call your members of Congress and demand immediate, strong oversight. it's way past time Congress stand up to the national security apparatus that it's been complicit in creating and empowering and act like the co-equal branch of government we elected them to be.
