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NEFAC calls on Justice Department to return seized phone records to the AP

Cavanagh

Cavanagh

By Rosanna Cavanagh, executive director, New England First Amendment Coalition

I was born in 1975 so I don’t have memories of the Watergate era, but my parents do.  My Dad was a professor at Princeton at the time and had recently been featured in Vogue magazine for his efforts to organize “Movement for a New Congress,” a reaction to the Cambodia invasion crisis. A quarter of the students at Princeton were taking part in this effort, an epicenter of the student movement to defeat supporters of this sudden expansion of the Vietnam War to another country.  The Nixon Administration told colleges that they would risk their tax exempt status if they permitted any political activity on campus.  My Dad was called into a meeting with Wall Street lawyers and told that the university was at risk and he could work for no pay if he wanted to stay.  Well, that wasn’t really an option for him at the time with four mouths to feed. He told them that he was taking care of his academic responsibilities, that he had a family to support, that he would continue doing the ‘Movement’ and they had no right to ask him to do this and violate his First Amendment rights.  My Mom, who stayed at home, had distinct memories of hearing constant clicking on the phones, as they were tapped.  She also received a threatening phone call when William Rehnquist was up for confirmation to the Supreme Court demanding that my Dad report back immediately to the Justice Department if he would testify and what his sources were.

It is deeply troubling to see how history repeats itself with the IRS going after conservative non-profit groups and the Justice Department overreaching with its probe into the cellular, office and home telephone records of individual Associated Press reporters and editors in Washington, New York, and Hartford, Conn., as well as the main number for AP reporters covering Congress.   First Amendment protected activities such as political organizing and news gathering are again under assault, now by a liberal administration.  No matter what your political persuasion may be, it is time to stand up and say enough is enough.  We cannot allow this watering down of our hard won freedoms to go on and sit idly by and watch it happen. What is even more troubling the President Obama has voiced his support for the actions taken by the Justice Department.   How times change.

In a 2005 speech on the Senate floor, then Senator Obama voiced concerns about the proposed Patriot Act which significantly widened the ability of the federal government to investigate American citizens. “This is legislation… puts our own Justice Department above the law…When National Security Letters are issued, they allow federal agents to conduct any search on any American, no matter how extensive or wide-ranging, without ever going before a judge to prove that the search is necessary. They simply need sign-off from a local FBI official. That’s all.”   Further, he worried that “if someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document – through library books they’ve read and phone calls they’ve made – this legislation gives people no rights to appeal the need for such a search in a court of law. No judge will hear their plea, no jury will hear their case. This is just plain wrong.”

Lord Acton was on the money in his letter to Bishop Mandell Creighton in 1887: “Power tends to corrupt, and absolute power corrupts absolutely.”  This plot is right out of the George Orwell novel Animal Farm.  Now, under President Obama, provisions in the Patriot Act have been extended and the Justice Department has brushed aside regulations, legal provisions and First Amendment ideals to pursue a broad and unparalleled intrusion into the phone records of one of the world’s largest news organizations.

Yet, even the Patriot Act, passed in the height of the post 9/11 security concern pays lip service to protecting our free press as a check on unbridled government authority.  Section 215 states, for instance, that “The Director of the Federal Bureau of Investigation or a designee of the Director…may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution.”

The very regulations of United States Justice Department with regards to subpoenas of the news media and particularly their telephone records recognize the importance of the “public’s interest in the free dissemination of ideas,” which our free press furthers and enables.  These regulations contain five provisions regarding narrowing the scope of such subpoenas, seeking information from alternative sources, an obligation to inform the subject and negotiate for information, the approval of the attorney general and balancing of interests in “free dissemination of ideas and information and the public’s interest in effective law enforcement.”  Somehow all five criteria were ignored in this case.  There was no attempt to narrow the scope of the records obtained, no information given to The Associated Press prior to obtaining such an incredible number of phone records, no attempt to negotiate, no approval by the attorney general and utter disregard of the public’s interest in free dissemination of ideas and information.

The New England First Amendment Coalition joins with groups around the nation including the Reporters Committee for Freedom of the Press, the National Press Club, and The Society of Professional Journalists and the California Newspaper Publishers Association to call on the Justice Department to immediately turn over seized phone records to The Associated Press.  Furthermore, we call upon President Obama and members of Congress to lead with regards to the enactment of a federal shield law which would protect journalists and their newsgathering materials.  Without such a law in place, future journalists will become unnecessary martyrs, spending hundreds of days in jail to protect anonymous sources whose important role throughout our country’s history as a check against corruption cannot be denied.