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You cant ask for trust and stomp on the First Amendment


Give embattled U.S. Attorney General Eric Holder credit on one score. He’s managed to do something his boss hasn’t — unite Republicans and Democrats.

Leaders from both parties have been blasting Holder and the Obama administration for two weeks after the revelation that the federal government had secretly seized personal and work phone records from as many as 100 reporters and editors assigned to at least three offices of the Associated Press, one of the nation’s most respected news organizations. The records were part of a two-month fishing expedition seeking the source of leaks of “highly classified material.”

Even within an admistration that has a Nixonian obsession with stopping leaks, this action was viewed as alarming.

U.S. Rep. Greg Walden, Oregon’s lone Republican on Capitol Hill, called the sweep of phone records “chilling and unprecedented.”

Oregon’s senior U.S. Senator, Democrat Ron Wyden, issued a prepared statement saying “the open and informed debate that our democracy depends upon requires that journalists — including those who write about sensitive national security issues — be able to do their jobs without the fear of being subjected to government surveillance.”

Both lawmakers are right.

There is a delicate balance between the rights of a free press to do its job and the need of governments to protect the safety of citizens.

That’s why, at the local level, police reports sometimes are redacted, or in some cases witheld from the press and the public completely, until an investigation is completed. As journalists, we don’t like it, but we understand the logic behind such secrecy.

But in this case, the U.S. Attorney General’s office has stomped on the First Amendment and a 41-year-old protocol governing subpoenas of news organizations.

Under those guidelines, government investigators subpoenaing media records must keep their search narrow and provide notice to the news organization in advance, unless such disclosure would jeopardize the investigation.

Since Holder won’t reveal what his snooping investigators were looking for, there’s no way to know whether their search was overly broad or whether there were other ways to get the information. But according to the AP, the news organization was not notified in advance that its phone records were being reviewed. Holder’s office, according to the AP, “cited an exemption ... that holds that prior notification can be waived if such notice, in the exemption’s wording, might ‘pose a substantial threat to the integrity of the investigation.’”

In effect, Holder is asking us to trust him while implying the AP editors couldn’t be trusted.

It’s not just journalists who are bristling at that assertion.

“The Department of Justice has rules in place that are supposed to prevent legitimate law enforcement activities from undermining freedom of the press,” Wyden noted. “It is the responsibility of the Justice Department to explain to Congress and the public how the broad surveillance that has been reported could possibly be consistent with those rules.”

Walden, for his part, asked an even more pointed question while talking to Fox News’ Lou Dobbs.

“If they’ve done it to AP, have they done it to others and we just don’t know about it yet?”

On Monday, we got the answer, as it was revealed that the Justice Department had investigated James Rosen, Fox News’ chief Washington reporter, as a potential “co-conspirator” for seeking classified documents.

White House staffers scrambled Monday to stress that Rosen was never actually charged with a crime, but that is beside the point.

This news is chilling not only for journalists, but also for historians and other researchers. In an interview with the Washington Post, Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, noted that “asking for information has never been deemed a crime.”