Attorney General Eric Holder. (Reuters/Jonathan Ernst)
Democrats and Republicans working together in Washington to address abuses of basic liberties? Bipartisan responses to the challenges that arise in the gray area where balances are struck between constitutional guarantees and national security demands? Impossible. Can’t happen. There is no way in these days of fury and scandal-mongering.
Actually, there is a way.
A genuine left-right coalition has developed over the past several days in response to the revelation that the Department of Justice seized Associated Press telephone records in its recent investigation of a CIA leak. And that coalition is likely to strengthen in light of the news that the DOJ investigated the reporting activities of Fox News’s chief Washington correspondent as a potential crime — “solicitation” of leaks. The latter development, in many senses more troubling than the former, calls into question whether basic protections for both reporters and whistleblowers are crumbling after more than a decade of Patriot Act abuses, Bush and Obama administration excesses and the politicization of debates about what were once accepted standards for protecting the public’s right to know and the privacy rights that underpin it.
In moments so rigorously partisan as these, many members of Congress will retreat to their corners, mounting attacks or making excuses. But there are some serious legislators, libertarian-leaning Republicans and progressive Democrats, who understand the urgency of the moment.
They get that the revelations about DOJ over-reach reveal a threat not just to freedom of the press but to the most necessary of press functions: the work of revealing for citizens the details of what their government is doing in their name but without their informed consent. None of these members are foolish or casual in their approach; they understand that it is necessary for the government to protect against the leaking of information that could endanger people. But they also understand that it is possible to provide that protection within a constitutional context.
Perhaps most importantly, they get that the best way to protect the First Amendment guarantee of a free press is to protect the Fourth Amendment guarantee of privacy. Journalists do not need — and should not seek — an array of special protections to do their jobs. But journalists and their sources do need to know that information can be shared without the threat of unwarranted — and self-serving — government surveillance of necessary conversations.
It is with this in mind that four very different members of Congress (Michigan Republican Justin Amash, South Carolina Republican Mick Mulvaney, California Democrat Zoe Lofgren and Colorado Democrat Jared Polis) have proposed a precise and appropriate response to the overreach by the Department of Justice. While the White House and key members of the Senate are backing a Shield Law, which protects journalists from being required to reveal sources, the House members are going deeper — to protect not just journalists but all citizens from “unreasonable searches and seizures.” They seek a Telephone Records Protection Act, which requires court approval when the government demands telephone records from service providers.
“The Justice Department’s seizure of the AP’s phone records — likely without the sign-off of a single judge — raises serious First and Fourth Amendment concerns,” says Amash, who has emerged as a hero to libertarian-leaning conservatives. “Regardless of whether DOJ violates the legitimate privacy expectations of reporters or ordinary Americans, we deserve to know that the federal government can’t seize our records without judicial review.”
Polis, a member of the Congressional Progressive Caucus, says, “Americans of all political stripes were shocked to find out that the Department of Justice had been accessing telephone records of reporters at the Associated Press. The Department of Justice claims that they operated within the confines of the law, which makes it abundantly clear that we need to provide a higher level of protection against government intrusion into an individual’s private records.”
This is an essential equation for all Americans who value the right to privacy outlined in the Fourth Amendment. But it is especially essential when it comes to constructing a press system that serves the intention expressed by the founders: to inform citizens so that they can, with their votes, steer the affairs of state.
This is what Thomas Jefferson recognized more than 227 years ago when he wrote to John Jay, “Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it.”
In the same letter, Jefferson wrote: “No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions.”
Associated Press President Gary Pruitt updated the Jeffersonian premise when he explained that the Justice Department’s actions were not just “unconstitutional” but destructive to the public’s right to know, insofar as such monitoring of media makes sources less willing to talk to journalists and reduces the likelihood that citizens will learn what their government is up to.
“If they restrict that apparatus [of newsgathering about controversial government actions] the people of the United States will only know what the government wants them to know and that’s not what the framers of the Constitution had in mind when they wrote the First Amendment,” explained the head of the country’s largest news service.
Pruitt’s right. No matter what action is taken, or not taken, journalists will continue to clog the corridors of the Capitol and crowd into White House press briefings. The question is whether those journalists will be present to challenge the status quo or as mere stenographers to power.
That’s a distinction that members of Congress who take seriously their oath to support and defend the Constitution of the United States understand. Indeed, it is the distinction that James Madison, the essential player in the drafting of the core document and of the Bill of Rights, was getting at when he said, “A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”
Justin Amash and Jared Polis are not going to agree on most issues. Neither are Mick Mulvaney and Zoe Lofgren.
But they can agree on the basic outlines of the American experiment and how it must operate.
This is as the founders of that experiment intended: a free press providing a free people with the information they need to be their own governors.
John Nichols is the author (with Robert w. McChesney) of the upcoming book Dollarocracy: How the Money and Media Election Complex is Destroying America. Hailed by Publisher’s Weekly as “a fervent call to action for reformers,” it details how the collapse of journalism and the rise of big-money politics threatens to turn our democracy into a dollarocracy.