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Editorial: Targeting Journalists; Probe Likely to Have Chilling Effect

It’s no secret that the Obama administration has moved aggressively to punish those who leak classified information to the news media. At last count, six current or former government officials have been indicted in leak inquiries, double the number charged by previous administrations combined.

What was a secret, at least until last Friday, was that the Justice Department was expropriating journalists’ phone records on a massive scale apparently in the pursuit of leaks. That was when The Associated Press received a letter from the U.S. attorney for Washington, Ronald Machen, announcing that the government had seized phone records for April and May 2012, covering 20 phone lines assigned to the news organization and its journalists. The records listed outgoing calls from the work and personal phone numbers of individual journalists; for news bureaus in Washington, New York and Hartford, Conn.; and for the main AP number in the House of Representatives press gallery.

The letter did not specify why the records were obtained, but a reasonable inference from the timing is that the U.S. attorney sought them as part of his continuing inquiry into the source of a May 7, 2012, AP story that disclosed that the Central Intelligence Agency had thwarted a terrorist plot in Yemen to bomb an airliner. Among the records seized were those of five reporters and an editor who worked on that story.

While it’s not unheard of for prosecutors and other lawyers to seek information from news organizations, this operation was unusual and disturbing in a number of respects. One is the sheer breadth of the information obtained, which potentially sheds light on the news-gathering activities and sources of more than 100 AP journalists who work in the targeted offices, reporting on a wide range of government actions. That such fishing expeditions are problematic is recognized by the Justice Department itself. Its rules require that in most circumstances, subpoenas directed at journalists’ phone records must be a last resort, sought only after “all reasonable attempts” have been made to get the relevant information from other sources; that the subpoena be narrowly drawn to elicit specific information; and that the time frame covered by the subpoena be limited.

And in the normal course of events, news organizations are given an opportunity to go to court to challenge a subpoena before the information has to be turned over — an option that many media companies, including this newspaper, have successfully pursued.

That none of these protections were apparently afforded to The Associated Press in this case suggests that either the circumstances are extraordinary — the U.S. attorney’s letter cited an exemption to the prior notification rule if such notification might “pose a substantial threat to the integrity of the investigation” — or that the prosecutors are grossly overreaching. History suggests that it’s the latter, but we await the Justice Department’s explanation.

In the meantime, it’s worth noting that the First Amendment protections afforded to the free press are only as good as the ability of journalists to report freely and follow the story wherever it leads. It’s one thing for government to try to track down leakers of classified information and quite another to use the subpoena power to intimidate both journalists and their sources, which, given what’s known so far, is a fair reading of what the Justice Department has done in this case. That chilling effect on news gathering subverts an essential element of the system of checks and balances.