Editorial: An alarming abuse of power

Published May 15, 2013

The Obama administration has had nearly a week and still cannot cough up a legitimate reason for having secretly pried into records for phones used by some 100 journalists at the Associated Press. This looks like a fishing expedition that was less about protecting national security than abusing power to silence would-be government whistle-blowers, intimidate the press and chill the public debate over the administration's handling of terrorism cases.

Attorney General Eric Holder defended the seizure of the phone records this week, calling an AP report on the foiling of a terrorist plot by a Yemeni branch of al-Qaida the product of "the top two or three most serious leaks that I've ever seen."

But the nation's chief law enforcement officer might want to get his story straight with the nation's top intelligence chief. John Brennan testified during his Senate confirmation hearing to become CIA director earlier this year that an al-Qaida plan in 2012 to detonate a bomb on an U.S.-bound airplane was "never a threat to the American public" because "we had inside control of the plot."

The sweeping nature of the phone record search was breathtaking. The Justice Department subpoenaed call records for 20 office and personal phones of Associated Press reporters and editors. The call logs came from phones in three states and five area codes, and included records from the AP's Hartford, Conn., New York and Washington, D.C., offices.

Associated Press president Gary Pruitt said the news agency held the story on the foiled plot in May 2012 until after federal officials had assured the organization that any security concern had passed. That is in line with Brennan's congressional testimony and in keeping with the long-standing practice by established media organizations to communicate with the White House in advance of disclosing sensitive national security information. The AP had agreed to a White House request a week earlier to temporarily withhold publication about the plot because the operation was still under way. According to the Justice Department, the federal government seized the phone records from AP editors and reporters who were involved in preparing the story during April and May 2012.

The AP was not notified in advance or given an opportunity to challenge the subpoenas, as is customary. That dodge enabled the Justice Department to avoid having to prove its search for the records was narrowly tailored and that the information could not obtained in any other way.

Holder raised more concerns than he calmed on Wednesday in his appearance before the House Judiciary Committee, promising with an almost complete lack of urgency to seek an "after-action" report once the case is resolved. The White House announced its support for reviving legislation that would create a shield law providing greater protections for reporters who refuse to identify their confidential sources. But these stalling tactics and makeover campaigns are no substitute for the administration coming clean on why it secretly threw a net over one of the most respected and active media organizations in the country, and why the government acknowledged the search only last week. Its indifference to open government, privacy and due process rights should be as alarming to the general public as it is to the nation's working press.