If I had to choose between government without newspapers or newspapers without government, I wouldn’t hesitate to choose the latter.

–Thomas Jefferson

The government needed to know who leaked the CIA’s in stopping a new “underpants bomber” by Al Qaeda to the Associated Press.  To do that, they obtained  two months of phone records from AP reporters and an editor.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

What distinguishes this story from the everyday accumulation of phone records, or otherwise private information that the government feels compelled to obtain, is that it happened to one of the most significant news organizations in the world, and that it happened to one of the most significant news organizations in the world.  No, the repetition wasn’t accidental.  I’ll explain.

Should the government have done this to you, or me, this would not be a headline.  What happens to our lives, our privacy, our world, may matter a great deal to us, but not so much to others, and certainly nothing to the AP.  But what happens to the AP constitutes a “massive and unprecedented intrusion,” according to the AP.  That’s because it happened to them.

But then, the AP is, by every definition, the Press, with as capital a “P” as one can type. It is the fourth estate, an organization whose duty, at least in concept, is to disseminate news, information and ideas to the public. This function is so critical to the viability of a democracy that its freedom is enshrined in the First Amendment to the Constitution. 

Among the tools in its arsenal is the ability to publish information provided by unnamed sources, who may be government officials, who reveal things that the government might prefer not be revealed.  This could be the CIA’s involvement in thwarting a terrorist plot, or torture perpetrated by the CIA, or corruption. It could be anything that the public needs to know to exercise our responsibilities as citizens in a working democracy. Without information, even if it’s embarrassing or, as in this case, overly revealing, our form of government cannot work. 

The question isn’t whether AP’s disclosure was inappropriate and harmed covert national security issues. It probably did. But then, what is the question?

According to Orin Kerr, the question is whether the government, using the tools and methods made available to it by law and regulation, are authorized to ferret out the source who improperly disclosed the CIA’s involvement to a reporter.  In other words, from the perspective of national security acting within its lawful parameters, there was a need to stop the leak and they did what they had to do. That it was done to the AP was unfortunate, but that’s where they needed to investigate.

Orin challenges readers to explain where the government violated any of its own laws or regulations in doing so.  The Department of Justice  issued a statement explaining its purpose.

We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations.  Those regulations require us to make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media.  We must notify the media organization in advance unless doing so would pose a substantial threat to the integrity of the investigation.  Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.

This is where things went awry. The government creates its own regulations to effectuate its performance of its responsibilities to us.  Theoretically, we approve of its doing so, since we elect smiling/angry faces to be our voice in government, but since we make such electoral decisions based on overarching interests and at wide intervals, nobody really believes that this reflects a majority approval. It’s just the unfortunate backside to republicanism. You vote the big picture and suffer the details.

In contrast to the regulations, with which in fairness most people would have no problem provided it happened to someone else, we have an interest of constitutional magnitude.  The Attorney General has taken it upon himself to balance “the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.”

See what he did there? It’s not the freedom of the press versus finding his leaker, but the “fair and effective administration of our criminal laws,” the whole megillah. The criminal law of which he speaks would be the one that prohibited someone from leaking to the press that this was a covert operation by the CIA, because they didn’t want Al Qaeda to know the CIA was on to them. It’s a worthy concern, but less than the “fair and effective administration” of justice. Nobody wants to sacrifice the fair and effective, well you know. But is catching their leaker worth seizing the AP’s phone records?

The government says it is.  The government says it complied with the rules it made up for itself. The government is sorry it came to this, but fair, effective, well, is important.  The government says it’s important enough to sacrifice some harm to the free press. And they’ve woken the AP out of their complacency, because nobody lost any sleep when it was me or you who the government might target.