Famed constitutional attorney Floyd Abrams is deeply troubled by the Justice Department's controversial seizure of Associated Press phone records and the targeting of a Fox News reporter as a criminal, and he says the White House reaction to the stories is woefully insufficient.
In his lengthy career of trying First Amendment cases, Abrams defended the publishers of the Pentagon Papers, Al Franken against the Fox News Channel and tobacco companies against the Food and Drug Administration.
The Justice Department is under heavy scrutiny for seizing phone records for more than 20 phone lines connected to Associated Press reporters without trying to secure cooperation from AP in the first place. Days later, it was revealed that James Rosen of Fox News was branded a criminal and a co-conspirator in a State Department leak over a story on North Korea.
Abrams said there is always a tension between the prying role of the press and the protecting role of the government, but he believes the recently revealed actions of the Justice Department go beyond previous federal attempts to limit information seen by the public.
"The notion that in the name of finding out who leaked information that more or less anything goes in an effort to find that out. That's something new. That sort of breaches the wall that has historically existed," Abrams told WND. "It's a new and troubling development."
White House Press Secretary Jay Carney responded to both the Associated Press and Rosen stories by saying the administration respects the right of an unfettered press to pursue stories but that there needs to be a balance with national security concerns. While he's optimistic that federal officials will shape up as a result of these controversies, Abrams said the reaction from the White House is less than reassuring.
"Yeah, I mean that's true that you need a balance and it's true, of course national security matters a lot, a lot, a lot. The fact is it's just not an answer to what they've done. They can protect national security by giving AP notice in advance and letting them go to court and fight it out. They can protect national security without defaming and branding journalists as criminals," he said. "I think they've got to lighten up a little bit and be a little more realistic about the proposition that leak investigations are not the single greatest priority of any administration, or they shouldn't be."
According to Abrams, leak investigations are often justified, but the Justice Department made a big mistake by never trying to solicit cooperation from the AP.
"As a general proposition, you've got to tell the press organization. You've got to talk to them. You have to try to come to some sort of agreement," Abrams said. "If you can't, and I don't think they could have here, that gives the press organization a chance to go to court and have a judge decide how to weigh this factor and that factor, you know how much does the government need it as against what is the intrusion into the freedom of the press.
"I do fault the Justice Department for not giving them notice, for not giving them a chance to go to court. The only possible justification that I can think of, certainly on the record here, is that the department said they were doing it because it would interfere with the investigation. I don't know how. I'm not persuaded of that at all," he said.
His skepticism was bolstered by subsequent reporting that the Associated Press honored CIA requests to hold the story on a terrorist plot to bomb an airliner out of Yemen near the one-year anniversary of the mission that killed Osama bin Laden. The AP honored that request and held the story until the CIA confirmed the security threat had passed. The Obama administration then requested a delay of another day so it could break the news. The organization rejected that request and ran the story ahead of the White House announcement.
"The AP really played by the rules, and by the rules I mean the responsible rule of journalists behaving the way we would like them to," said Abrams, who argued that the AP was fully justified in rejecting the White House request and publishing the story whenever it wanted once the CIA gave clearance.
"Whether any of this after that was in retribution is hard to tell, but it just makes the whole thing even more suspicious in terms of whether there was that sort of national security need to behave as the department did. It's not a little thing for them to go to the telephone company and gather records of a news organization without permission," he said.
As alarmed as Abrams is by the Justice Department's treatment of the Associated Press, he's even more uneasy about the department declaring Rosen a criminal and getting a warrant for his phone and email records and those of Fox News executives and even Rosen's parents.
"I think this one's even worse than the AP story. I've read the redacted version that is available of the application that the Department of Justice made in court. They basically accused the journalist of being a criminal, literally a criminal, for doing the interviewing that they did and trying to persuade someone to give them a story," Abrams said. "Journalists at their best are prying, are asking questions, are trying to get information. Treating them like criminals, branding them as criminals is absolutely unacceptable."