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What's at Stake When the Department of Justice Seizes AP Phone Records

'It's a crackdown on who controls information,' says one former DOJ employee

White House Press Secretary Jay Carney speaks during the daily press briefing at the White House in Washington, DC.
SAUL LOEB/AFP/Getty Images
May 15, 2013 12:01 PM ET

This week, it was revealed that the Department of Justice secretly seized two months' worth of private phone records from Associated Press reporters and editors. As this decision comes under increasing scrutiny, press freedom advocates say it's just part of a larger battle for control of information – one that they've been trying to sound an alarm on for a long time.

"I've been saying for years that this is a backdoor way to go after journalists," says Jesselyn Radack, a former DOJ employee and whistleblower who is now director of national security and human rights at the Government Accountability Project.

The Obama administration has prosecuted more whistleblowers under the Espionage Act of 1917 – a 96-year-old law that was written to target spies, not journalists' sources – than all previous administrations combined. Reporters (sometimes thinly anonymized as "Reporter A") often show up in these indictments, says Radack, a fact that she believes "should have been a wake-up call."

On Monday, the AP revealed that the phone records seized by the DOJ could bring over 100 employees who use those phone lines under the scope of the investigation – which appears to be focused on a single AP story, from May 7th, 2012. The story reported that the CIA disrupted an al Qaeda in the Arabian Peninsula plot to blow up an airliner, though it later came out that the plot was actually a sting set-up. In recently confirmed CIA director John Brennan's words, "We had inside control of the plot and the device was never a threat to the American public."

So why is the Obama administration targeting the reporters and editors who worked on this story – one that, by the CIA's own admission, didn't even involve an actual national security threat? "There's a broader war on [those who reveal] information," Radack says. "Whistleblowers, hackers, anyone who is dissenting. It's a crackdown on who controls information."

The New Political Prisoners: Leakers, Hackers and Activists

Thomas Drake, the National Security Agency whistleblower who was prosecuted under the Espionage Act in 2010, echoes Radack's concerns. "The real issue is the government's pathological need for control of information in order to protect the imprimatur of the 'state' religion, namely national security," says Drake. He fears the DOJ investigation will have a clear chilling effect for journalists and their sources: "It sends a message to the press that we can ferret out your sources, so watch out, because we are watching you." Director Robert Greenwald's timely new film, War on Whistleblowers, features Drake and illustrates the consequences for those who seek to expose government corruption and illegality.

"Regardless of the intent behind these subpoenas, the effect, which is entirely foreseeable, is one of intimidation," says Elizabeth Goitein, who co-directs the Brennan Center for Justice's Liberty and National Security Program. Goitein says this latest investigation undermines the Obama administration's claim that technological advances, rather than ideology, are the leading cause for the increase in whistleblower prosecutions, because it's easier to trace a trail back to sources than ever before. "That doesn't explain why so many of the prosecutions have targeted disclosures that were embarrassing to the government," notes Goitein, who formerly worked in the civil division of the DOJ. "It certainly doesn't explain the aggressiveness of the subpoenas at issue, which are far broader than necessary to accomplish any legitimate purpose."

White House Press Secretary Jay Carney has maintained that the White House had no advance knowledge of the AP investigation, a claim that Radack questions. "It defies credulity that the White House didn't know about it," says Radack. For Carney to claim ignorance, she says, "pushes the envelope of plausible deniability."

Even if Carney's statement is true in a narrow sense, both Radack and Goitein say that the wall between the White House and the DOJ is far from absolute. "It may well be true that the White House didn't have any involvement in this action," says Goitein. "But it seems they've sent strong signals in other ways that this is what they want from the Justice Department."

For Radack, that's a dangerous position for the White House to hold. As for what the DOJ investigation into AP says about the future, she's clear: "This will happen again."

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