by Steve Coll June 10, 2013
In 1969, when nothing excited the public’s interest like the depredations of drug fiends, the Louisville Courier-Journal sent a reporter named Paul Branzburg to penetrate Kentucky’s marijuana underground. He published eyewitness accounts; a photograph accompanying one of them showed hands hovering over a pile of hashish. A grand jury ordered him to identify the dealers he had met. He refused. Branzburg v. Hayes landed at the Supreme Court three years later. Justice Byron White wrote, in a 5-4 opinion, that the First Amendment does not exempt reporters from giving evidence in criminal cases. Yet the Court also held that the Constitution protects reporters from indiscriminate government subpoenas. The opinion is regarded today as a muddle; it does not make clear how much protection journalists deserve. The Supreme Court has yet to revisit the issue.
In reaction to Branzburg, the Justice Department enacted new guidelines for federal prosecutors seeking evidence from journalists. They are far from ideal—they have loopholes that give an Attorney General wide discretion. Yet they have often discouraged Justice from overreaching. The guidelines require that the Attorney General sign off on all media subpoenas, that any demands “be as narrowly drawn as possible,” and that, in all but the most exceptional cases, news organizations be notified of a subpoena, giving them time to appeal it in court.
Last month, President Obama’s Attorney General, Eric Holder, admitted that earlier this year Justice had secretly subpoenaed two months of records for twenty telephone lines used by Associated Press reporters and editors. It was the most aggressive known federal seizure of media records since the Nixon Administration. Holder has said that he recused himself from the case, though the circumstances remain unclear. But Justice offered the A.P. no chance to appeal the action, and only by authoritarian twists of logic could a secret subpoena seeking such diverse records be construed as the narrowest course possible. In a letter to Holder, the Reporters Committee for Freedom of the Press wrote that the action “calls into question the very integrity of Department of Justice policies toward the press.”
The subpoena arose from a 2012 story about how the C.I.A.’s infiltration of an Al Qaeda affiliate in Yemen had thwarted a bombing plot. The A.P.’s scoop may have angered the C.I.A. because such disclosures can endanger sources, but the A.P. held the story for five days to allow the Administration to prepare. And, after the story’s publication, John Brennan, at that time Obama’s counterterrorism chief and now the director of the C.I.A., touted the success of the operation that the A.P. described, without citing any damage to national security.
Also last month, the press revealed that F.B.I. agents had reviewed the comings and goings of the Fox News reporter James Rosen when he visited the State Department to conduct interviews with a source helping him with a story on North Korea’s nuclear program. Holder approved an affidavit for a search warrant that named Rosen as a possible co-conspirator in violations of the Espionage Act, because he might have received classified information while doing his job.
It has been apparent for several years that the Obama Administration has departed from the First Amendment norms established during the seven Presidencies since Branzburg. Holder has overseen six prosecutions of government officials for aiding the press, more than were brought by all previous Administrations combined. Even after the A.P. controversy erupted, Obama said that he would make “no apologies” for zealous press-leak investigations, since unauthorized disclosures of secrets jeopardized the lives of the soldiers and the spies he sent in danger’s way.
It seems likely that Holder or his deputies have authorized other press subpoenas and surveillance regimes that have not yet been disclosed. The Justice Department has acted belligerently even in cases where no grave harm to the public interest has been demonstrated, or where, as in the A.P. case, the leaks under suspicion have served to publicize the Administration’s successes. Why would the President preside over such illiberal decisions? His longest-serving advisers are disciplined and insular to a fault; press leaks offend their aesthetic of power. And it would hardly be surprising if Obama viscerally disdained the media’s self-important excesses. Yet the Administration’s record cannot be chalked up to the President’s temperament or to Holder’s poor judgment alone.
It is no coincidence that the A.P. and the Fox cases arose from national-security reporting. Obama inherited a bloated national-security state. It contains far too many official secrets and far too many secret-keepers—more than a million people now hold top-secret clearances. Under a thirty-year-old executive order issued by the White House, the intelligence agencies must inform the Justice Department whenever they believe that classified information has been disclosed illegally to the press. These referrals operate on a kind of automatic pilot, and the system is unbalanced. Prosecutors in Justice’s national-security division initially decide on whether to make a criminal case or to defer to the First Amendment. The record shows that in recent years the division has been bent on action.
Last month, at the National Defense University, Obama pledged to end America’s formal war on terrorist groups. His speech was one of the most impressive of his second term. He announced renewed plans to close Guantánamo, and he promised to tighten the rules governing classified drone strikes. He made no mention, though, of the many examples of investigative reporting—about the torture and abuse of prisoners, about official lies issued by the Bush Administration on the road to war in Iraq, about targeting errors in drone attacks—that have helped to discredit the policies he now seeks to wind down.
In the long run, to rebalance the national-security state and to otherwise revitalize American democracy, the United States requires a Supreme Court willing to deepen protections for investigative reporters, as the majority in Branzburg would not. In response to criticism about the A.P. case, Obama has reintroduced federal legislation that would clarify journalists’ rights. Such a federal “shield law” might be constructive, but new legislation with overly broad national-security exceptions would be even worse than the status quo.
The President remarked recently that an unfettered press is vital because it “helps hold me accountable, helps hold our government accountable, and helps our democracy function.” The media are not just watchdogs barking at the White House and the C.I.A. The First Amendment aspires to a fuller compact among citizens, including between journalists and confidential sources, that is premised on the self-evident truth that secrecy and concentrated power are inherently corrupting. ?