The job of shielding journalists is not finished

Recent reports reveal the Department of Justice issued secret orders to surveil — take your pick — the private communications of journalists, a White House counsel, and at least two members of Congress. For all the political furor about the latter, we should not overlook how serious the threat to civil liberties becomes when the government spies on journalists.

We know that prosecutors sought the records of four New York Times reporters. In a particularly perverse move, Times executives were slapped with gag orders that prevented them from informing their newsrooms of the surveillance. It is perhaps only because Google, which held the data, waged a legal battle against the government and insisted the newsroom be informed, that the story got out at all. Prosecutors also sought the records of reporters at The Washington Post, The Associated Press and CNN. 

The Biden White House, to its credit, said it knew nothing about — and upon discovery immediately halted — these secret legal battles, which began during the Trump administration and continued through this spring. Moreover, the administration vowed not to permit the Justice Department to seize reporters’ communications logs. Attorney General Merrick Garland turned that promise into policy. He should now take the further step of converting the policy into a permanent departmental rule. 

We should disabuse ourselves, however, of the notion that these acts were unprecedented, or characteristic of only one administration. During the Obama administration, government lawyers issued a search warrant for the emails of Fox News reporter James Rosen. They also seized phone records from The Associated Press, including some of the very journalists, now at the Times, recently targeted by the Trump administration.

Nor does the position of the Biden administration, as refreshing as it may be, guarantee the government no longer will intrude into the news gathering and reporting process, or that the seizing of reporters’ records will not recur. Dozens of journalists have been jailed over the years for refusing to divulge confidential sources. The only way to prevent such intrusions at the federal level in the future is to pass a federal press shield law, similar to those in many states.

The first step should be a fuller understanding of what happened. Former Attorney General William Barr says he doesn’t recall being briefed on the order targeting the Times. We need to know: Who signed the order? Did the government demonstrate to the court, as departmental policy requires, a “grave national security threat” or an “imminent risk of bodily harm or death”? Or was this somebody’s idea of gotcha politics? Congress should inquire.

In addition to holding hearings, Congress should further protect the press by debating and supporting recently reintroduced federal legislation, now called the PRESS Act (Protect Reporters from Exploitive State Spying). This bill would grant journalists in federal court proceedings a privilege to refrain from revealing confidential news sources. Introduced by Sen. Ron Wyden (D-Ore.) and Rep. Jamie Raskin (D-Md.), prior versions of this bill were the soul of bipartisanship. It passed the House in 2007 and 2009 with large bipartisan majorities. In 2013 it was authored by now-Senate Majority Leader Chuck Schumer (D-N.Y.) and Sen. Lindsey Graham (R-S.C.).

Some details will need to be tackled in debate. The current bill takes a generous view in this era of blogging of who is a “journalist.” Civil and ordinary criminal cases will have to be separated from national security. A balancing test is needed between respect for a free press and the need for public safety, such as preventing an imminent act of terrorism. But journalism and the right to report on government actions must be better protected.

Frequently, the revelations of investigative journalists are painful to those in power but enormously useful to society. The four Times reporters targeted by government lawyers have all won Pulitzer Prizes. Their scoops range from revelations about warrantless spying by the New York Police Department on Muslims to incidents of domestic surveillance by the National Security Agency. Their freedom to hold the government accountable is foundational to the protection of civil liberties.  

This latest stream of surveillance stories proves the point. What better way to demonstrate the necessity of a vigorous press than to unearth the Justice Department’s rationale behind secret surveillance against the press? What better way to honor our freedom of the press tradition than to pass the PRESS Act?

Walter Cronkite said it best: “Freedom of the press is not just important to democracy; it is democracy.”

Bob Goodlatte of Virginia, a Republican and former chairman of the House Judiciary Committee, is a senior policy adviser for a civil liberties organization, the Washington-based Protect The 1st.

Rick Boucher of Virginia, a Democrat, was a member of the House Judiciary Committee for 28 years and also is a senior policy adviser for Protect The 1st.