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How Far Should Government Go in Investigation of Leaks?

Three former Justice Department officials wrote a New York Times op-ed defending the subpoena of Associated Press reporters' phone records. Gwen Ifill talks with First Amendment lawyer Floyd Abrams and Michael Mukasey, former U.S. attorney general, about whether the department overreached its authority in its investigations.

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    Now to another story that has captured the attention of the news media and of Congress.

    After new revelations about extensive investigations involving the Associated Press and FOX News, three former Justice Department officials are defending the leak inquiries.

    Writing in The New York Times, they said today: "The criticism of the decision to subpoena telephone toll records of AP journalists in an important leak investigation sends the wrong message to the government officials who are responsible for our national security."

    White House Press Secretary Jay Carney said today the key is to strike the right balance.

    But what is that balance?

    For that, we turn to Floyd Abrams, a First Amendment lawyer who routinely represents news organizations, and former Attorney General Michael Mukasey, now an attorney in private practice in New York City.

    Michael Mukasey, how far should the government go in these kinds of investigations, in your opinion?

  • MICHAEL MUKASEY, Former U.S. Attorney General:

    Well, there are rules and procedures that are prescribed as to how far they should go.

    And what those rules say is that when it comes to getting information about the records, the telephone records of a reporter, which is what is at issue in the AP case, that they are supposed to, number one, exhaust other alternatives, number two, obviously, recognize that what they're dealing with is something that trenches on press freedom, negotiate with the news organization in question, if it's possible to do that without prejudicing the investigation, and limit the subpoenas, limit the materials sought to what is absolutely necessary.

    And the question is whether any or all of that was done here.


    Floyd Abrams, what do you think? Was any or all of that done here?

    FLOYD ABRAMS, Partner, Cahill, Gordon & Reindel: Well, I really don't think enough was done here.

    The only justification for not asking, telling the AP that they wanted their phone records is that doing so would interfere with the integrity of the investigation. And I just haven't seen anything to persuade me that that is so. If the fear here was — and this has been suggested in some reports on it — that they might go to court, that AP might go to court, that's a terrible reason. The AP ought to go to court to defend itself and defend its telephone logs.

    And if that takes some more time, well, that's just fine. The one thing you shouldn't do is just to evade the regulations by going right in the direction of the telephone company.


    Well, let me ask you and then Mr. Mukasey this question, which is the administration has said — and previous administrations have made this argument as well — that this is a matter of national security, that when someone leaks sensitive information that could endanger American lives, all bets are off.

    Is that something that sounds right to you, first to you, Mr. Abrams?


    Not that way, no. All bets are never off.

    If there's a national security issue, there ought to be a very sophisticated, serious, sober investigation, in which every effort, As Attorney General Mukasey was setting forward, every effort is made first to avoid going to the journalists, and here — or imposing on their rights in any way.

    Here, they went after a lot of interrogations, to be sure, but here they went to the telephone company, instead of going to the Associated Press. And I just see no justification for that.


    Mr. Mukasey, did they go too for?


    Well, they seem to have gone too far, from what I know, with the breadth of the subpoena.

    As I understand it, they were investigating an incident that was so confidential that it was known only to very few people in government and wasn't actually briefed even to the leadership in Congress or to the Oversight Committees, the Intelligence Committees of Congress. One of the people whose records they subpoenaed was the congressional correspondent for the AP.

    I can't figure out for the life of me why that was done. So the question is really the breadth of the subpoena.


    Let's talk for …

    Go ahead. Finish that thought.


    No, go ahead. Go ahead.


    Well, let's talk for a moment about the breadth of the subpoenas.

    When is it OK — the administration has said, among other things, that they are trying to search for the leaker, that it's not so much about the reporters, but the leaker. Is that the standard which you can imagine applying that it's worth doing what you need to do in order to get to that leak?


    Absolutely. And that is the person who you should focus on.

    The first people they should have focused on — I don't know whether they did or not — but, obviously, the first people they should have focused on when they were dealing with an operation that was known only to very few people is the few people who knew about it.

    Obviously, one of them was the leaker. And only when that doesn't prove fruitful should they be looking, should they be casting a wider net, and, there, only the people who participated in the report. Again, I don't understand how the congressional correspondent is involved in that.


    Mr. Abrams, I want to talk to you about the FOX News case, which is a little bit different. It's about whether somebody should have been — whether somebody really was — should be involved in a criminal inquiry, whether they should be held criminally responsible for the kind of reporting they were doing? Is this something which is within the realm?


    Well, I don't think so. I think this is even worse than the AP situation.

    I mean, here, you have an FBI agent filing a document in court basically accusing a high-ranking FOX journalist of engaging in criminal conduct, citing a statute which has never been used against journalists in the past, using language that the journalist must have been an aider or a better, because why? Because he asked questions. Because he tried to have a relationship with a potential source.

    I mean, essentially, what they were saying is that for committing an act of journalism, you can be deemed a criminal.


    Michael Mukasey, do you have any experience with that having happened before?


    With that having happened before? No.

    I do have experience with subpoenaing reporters to get information about a leaker. And that took an enormous amount of time. It took a lot of negotiation with a lawyer for the reporters and with the news organization involved, and could not be done, in fact, was not completed within the time that I was there.

    I have never had a situation like this. The closest thing I can think to it is the WikiLeaks situation, where it possible, I guess, to say that the fellow who ran WikiLeaks was himself a participant in a crime because he really intended to harm the United States. But that is light years away from this.


    All sides have said in this that whatever the administration is involved in, that it has the potential of putting a chilling effect either on reporting or on the Justice Department's ability to protect the American people.

    Michael Mukasey — starting with you, Floyd Abrams, what's the balance there, what's the proper balance, and how do you negotiate your way to the middle in an argument like that?


    Well, you try to strike the balance. You try to find some sort of way to go about your investigation in a way best designed to avoid interfering with the ability of the press to go about its mission.

    And the worst way you can do that is by starting to accuse journalists themselves of being participants in criminal conduct. I mean, that is the end. That's the most radical change in policy, if this is a policy, that we have seen in years.


    Mr. Mukasey?


    Well, there are two problems with it that I see. Number one is that it subverts the ability of the American people to find out information.

    Obviously, if the American — people are not inside the government. The only people inside the government are the people who work for the government. And if the only way that the American people have of finding out what their government is doing is by what is authorized and reported by the government or leaked by government officials — and, of course, that goes on all the time — then the ability of people to make up their own minds about what their government is doing is subverted.

    In addition, obviously, if people who speak to reporters think that their records and their identity is being — is being made known to the government, or reporters think that their records and activities are being made known to the government, they are going to be hesitant for the reporter's side in seeking information, and from the source's side in disclosing it, also that it impedes — that's the first problem, is the problem of running a democratic system.

    The second problem is that the next time there's a national security issue, we're going to have a situation like the one in the story of the little boy who cried wolf. When the government cries national security, nobody will believe them.


    Former Attorney General Michael Mukasey and First Amendment lawyer Floyd Abrams, thank you both for joining us.

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