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Was Seizure of AP’s Phone Records Justified or Harmful to Press Freedom?

May 14, 2013 at 12:00 AM EST
Judy Woodruff talks with David Schultz, legal counsel for the Associated Press, about the procedures for accessing information from the news media about confidential sources, what constitutes "crossing the line" by the government and whether the current investigation was justified by the gravity of the situation.
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JUDY WOODRUFF: More on all this now from an attorney representing the Associated Press. He is David Schulz. He specializes in First Amendment issues and is a partner at Levine Sullivan Koch & Schulz.

We invited the Department of Justice to appear on the program, but officials declined.

David Schulz, welcome to the NewsHour.

First of all, why does the Associated Press consider this a violation of their constitutional rights?

DAVID SCHULZ, Levine Sullivan Koch & Schulz: Well, Judy, this is a really serious issue, because without sources, there isn’t the news. Reporters need sources to figure out what’s going on in the government.

And this was really a very large-scale intrusion into AP’s news-gathering activities. The subpoena sought, as you mentioned, 20 phone lines in a number of bureaus around the country where 100 or more reporters — 100 or more different reporters work. So it was extremely broad.

And the impact on that is really devastating, because it gives the government kind of an ability to see what the AP was doing, how it goes about its business, who it was talking to not on any particular story, but on every story that was being covered during that period of time. And it’s just overreaching in a fundamental way that has an adverse impact on the press.

JUDY WOODRUFF: We heard the attorney general, though, say — he said, this was a leak of classified information. He said it was one of the most serious he’s ever seen in the damage it did to U.S. national security.

Why doesn’t that justify a full-fledged investigation?

DAVID SCHULZ: Well, there always are issues and balances, I think, as the White House said today, between national security and the free press.

But this sort of action should be taken in very, very rare circumstances. And I don’t think that the Department of Justice has demonstrated that what it did was appropriate here. Certainly, there’s a lot of unanswered questions; 20 journalists involved in the story? We also know that the leak that we think that they were investigating was a story that was held by the AP. It was handled responsibly.

When they understood the government had concerns about the timing of the story, it wasn’t broadcast or released by the AP. So there was a responsible effort by the press here. Now, whether the government has a right to go after classified information, it does.

But, bear in mind, if the government can get from the press any time it wants to information about who its sources are, pretty soon the only thing we are ever going to know about the government is what the government wants to tell us. This just really is not how things work. And it’s a tremendous adverse effect on a free press.

JUDY WOODRUFF: I hear you, and — but I also heard the attorney general say that this — what happened. He said this leak put the American people at risk, and he repeated that.

DAVID SCHULZ: Sure.

And if that’s the case, there are things that can be done. We have had a sad experience with this. It grew out of the Watergate era. And there are regulations in place that were put in to rein in the excesses of the Justice Department in going after reporters in the post-Vietnam, post-Watergate era.

And there are a number of those things in those regs. One is that the attorney general is supposed to personally sign off on a subpoena before it’s issued. But, more importantly, before a subpoena goes out for this sort of information, they’re supposed to be able to verify that the information is critical to a successful investigation and that it’s not available from any alternative source, and then they have an obligation to be sure that it’s narrowly drawn.

And we would like an explanation from the Justice Department of what they did to assure themselves that they couldn’t get what they needed from other sources and how they can justify this terribly broad subpoena as narrowly drawn.

And there’s one other safeguard that I just want to mention, because I think it’s important. The way the regulations are written, when the Justice Department wants this information, this type of information, they’re supposed to come to the press first and tell them what they want and negotiate so that they can narrow it and get what they need.

They’re only authorized to do this in a secret way, as was done here, where they can demonstrate that disclosing in advance would undermine the integrity of the investigation. And it’s really hard to understand on these facts how telephone logs from over a year ago that were sought in connection with an ongoing investigation that had been publicly disclosed — we knew there was a special prosecutor looking at this — how advising the AP in advance would have jeopardized that.

JUDY WOODRUFF: Well …

DAVID SCHULZ: And that’s important, because if they had advised us in advance, a court would have been allowed an opportunity to review that. That didn’t happen.

JUDY WOODRUFF: Well, all we have to go — all we have to go on at this point of course are the words of the attorney general, the deputy attorney general, because the attorney general recused himself.

But we know in that letter from Mr. Cole, the deputy attorney general, he said this was only done — and I’m quoting him — “after all other reasonable alternative investigative steps had been taken.” He said there had been 550 interviews, tens of thousands of documents they had looked at before they turned to the phone records.

DAVID SCHULZ: And, again, that’s not all in the letter. I’m not sure where you’re getting some of those numbers.

But one of the key points here is, Judy, is if they had followed the procedures and notified the AP ahead of time, AP would have had the opportunity to ask a judge to review the situation and determine whether it really satisfied the criteria. And that’s an important safeguard that was just short-circuited here. It was a unilateral action.

And it has a huge impact. The reason I think that there’s been such a reaction in the press is, it really cripples the ability of the press to do its job. What source is going to talk with a news organization that’s viewed as being some sort of investigative tool of the Department of Justice? And if their records can freely be obtained in this manner, then there’s really a problem. This is a big step.

JUDY WOODRUFF: I was just going to say, that description I was using, I was quoting the attorney general as saying there had been an exhaustive search. And then I guess there were some other anonymous quotes from others.

But I guess my final question, David Schulz, is where does the Associated Press, where should others in the media draw the line? Because if the administration is saying classified information shouldn’t have been leaked, it put people’s lives at risk, and the journalists are saying, but we need to be able to do our jobs, where is the — where should that line be drawn?

DAVID SCHULZ: It’s a difficult question. And I won’t deny that there are circumstances where that line — where the government may need to cross that line, but it should be very, very rare.

I mean, bear in mind in the 35 years I have been practicing law, I only know of one other instance where the Department of Justice went after a reporter’s records without giving them advanced notice. And that was just a single reporter for his home records and his office records. This is 20 different phone lines and not of individual reporters, but of bureaus.

It’s just massively overbroad. And I think that’s part of the problem here. It’s not to say the government doesn’t have some legitimate rights here, but it just overreached dramatically and it short-circuited the procedural safeguards that should exist so that we know that the sensitivities, the First Amendment rights, the need of the public to have information about the government is being protected.

JUDY WOODRUFF: David Schulz, attorney representing the Associated Press, we thank you.

DAVID SCHULZ: Thank you.