Eric Posner Debates Slate's Emily Bazelon on DOJ and AP
In the wake of the story this week that the Justice Department scooped up two months’ worth of the phone records of reporters and editors at the Associated Press, University of Chicago law professor and Slate contributor Eric Posner and Slate senior editor Emily Bazelon have been arguing over whether this is an overreach by the Department of Justice and an intrusion on the newsgathering function of the press (Emily), or an entirely justified effort to find and prosecute a scurrilous government leaker who imperiled the country’s counterterrorism operation in Yemen (Eric). Here’s an edited version of their exchange:
Emily: Like a lot of journalists, I am dismayed and indignant about the Justice Department’s commandeering of two months of AP phone records. To me, this is part of a troubling development: The Obama administration has pursued more leak prosecutions—six—more aggressively than any administration in history. For comparison’s sake, as I mentioned earlier this week, from 1917 until 1985, there was one successful federal leak prosecution. Our democracy was the better for the freedom the press has traditionally had to uncover government secrets (see Watergate). In the case of the AP, the particular tactics the government used are worrisome for their breadth—lots of phone lines in different offices over a long period of time—and for the lack of judicial oversight. Instead of serving the AP with a subpoena, which would have alerted the news organization and given it a chance to fight the order in court, DoJ apparently sent the subpoena to the phone companies. The Justice Department decided on its own not to follow its usual policy of giving the press notice of this kind of intrusion, because it apparently decided that giving notice would threaten the integrity of the investigation. It’s hard to see why that would be true of phone records collected after the fact, as New Yorker general counsel Lynn Oberlander points out—and her larger point is that this should be a call for the courts, not prosecutors, to make...
Eric: It makes perfect sense to me—I can’t speak for everyone else, whose opinions rarely coincide with mine. The May 2012 AP story that’s at issue disclosed that the CIA thwarted a terrorist plot to plant a bomb on a plane flying to the United States from Yemen. As Orin Kerr explains, anyone who read the story could infer that U.S. or foreign agents had penetrated al-Qaida’s Yemen affiliate. Even if AP delayed publication until after completion of the operation, the information disclosed may have put the lives of agents in danger or disclosed intelligence methods or simply made foreign intelligence agencies yet again doubt the U.S. government’s ability to keep secrets. The story identifies its sources as U.S. government officials, who clearly violated federal secrecy law. The Justice Department acted rightly to investigate these violations. And because it knew that U.S. government officials communicated with AP journalists, it acted rightly to subpoena phone records that might disclose phone numbers of U.S. officials, who could then