Protect free flow of information

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By Steve Key
Hoosier State Press Association

In the wake of the Depar­tment of Justice seizure of Associated Press phone records, President Barack Obama has called for the passage of a federal shield law.

Reporters’ sources sorely need federal protection, but passage would not address the fundamental issue that’s come to light – the apparent disregard by the justice department of the chilling impact on news gathering that its cavalier attitude toward press freedom creates.

Attorney General Eric Holder couldn’t even hazard a guess as to how often he authorized obtaining journalists’ phone records during his four years in office during a recent interview with NPR’s Carrie Johnson.

“I’m not sure how many of those cases … I have actually signed off on,” Holder said. “I take them very seriously. I know that I have refused to sign a few [and] pushed a few back for modifications.”

The answer implies that there have been numerous requests that Holder has approved if he remembers refusing a “few” and asking that an additional “few” be modified.

Subtracting the “few” would leave the majority that it appears he signed.

The question remains: How often has this happened?

Based on the history of the failed “Free Flow of Information Act” – introduced by then-Rep. Mike Pence and sponsored in the Senate by then-Sen. Richard Lugar – one shouldn’t be surprised by the justice department’s actions.

That department primarily opposed the federal shield law both during the administration of President George W. Bush and in the current Obama administration, though Obama expressed his support for it during his campaign.

The collection of phone records is especially stunning considering that the Associated Press withheld publication for five days of the successful foiling of an

al-Qaida plot to use an underwear bomb to down a U.S. airliner to mark the anniversary of Osama bin Laden’s death. The delay was AP’s response to a request to hold the story by CIA officials, according to a Washington Post story.

The story ran only after CIA officials no longer argued that publication would hurt national security. At that point, the CIA only asked for another day’s delay so that the Obama administration could announce the successful counterterrorism operation, according to the Post.

AP decided to publish at that point.

So if the story no longer compromised national security and the Obama administration planned to announce it, why did the Department of Justice seize the records of 20 phone lines used by up to 100 Associated Press reporters over a two month period?

Holder says the unauthorized disclosure about an intelligence operation to stop the planned al-Qaida bombing was among the most serious leaks he could remember and justified secretly obtaining the records.

But … the administration planned to publicly announce the story?

By all means, Congress should pass a federal shield law. It would erase the question as to whether a reporter can protect an anonymous source (currently, yes if you’re in an Indiana court but no if you’re in a federal court).

And don’t stop there. Obama should insist that his Department of Justice commit to ending what may be a routine practice of using journalists’ phone records to investigate government officials who communicate with reporters.

Steve Key is executive director and general counsel for HSPA.

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