Justice Department employees at an event with Attorney General Eric Holder (left) and Michelle Obama. (AP Photo/Susan Walsh)
“The burden is always on the government when they go after private information—especially information regarding the press or its confidential sources.”
—Senate Judiciary Committee chairman Patrick Leahy
When John Lindsay was elected to the US House of Representatives in 1958, the Republican lawyer from Manhattan arrived on Capitol Hill as a man on a mission. “Often alone on the House floor,” recalled Nat Hentoff, “Lindsay wielded the Bill of Rights against its enemies.”
Lindsay was absolutely determined to reinvigorate the bill of rights, especially the First Amendment. After a decade of “red scares” and McCarthyism, he spoke up for dissidents. He hailed the right to assemble and to petition for the redress of grievances. And he championed a free press as the essential underpinning of a free society.
Lindsay developed a reputation for disregarding party lines. He was a Republican, but if the Republican president was wrong, he would not allow party ties to temper his objections. And if the members of his caucus disregarded civil liberties, they were more likely to get an earful from Lindsay than from the Democrats.
Around the time that Lindsay was elected mayor of New York, California Democrat Don Edwards, a former FBI agent, arrived to take up the fight. For three decades, Edwards checked and balanced not just Republicans but Democrats who failed to recognize the rights of citizens and the essential role of a watchdog press. When his Democratic colleagues in the House of Representatives went after reporter Daniel Schorr for revealing details of an intelligence committee report, Edwards ripped his colleagues. “The freedom of the press is very much involved here,” the congressman declared. “By bringing it up this way and naming Mr. Schorr, there is a very chilling effect on a reporter’s right to receive classified information.”
We remember Lindsay and Edwards because of the standard they set. They understood that the defense of the Bill of Rights in general, and freedom of the press in particular, must never be compromised by partisanship.
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That’s why it was so very important when, after it was revealed that the Department of Justice had obtained the phone records of Associated Press journalists, both Patrick Leahy and Bob Goodlatte spoke up.
Leahy, the Vermont Democrat who chairs the Senate Judiciary Committee, and Goodlatte, the Virginia Republican who chairs the House Judiciary Committee, come from different political parties, different ideological perspectives and different experiences.
Yet, they essentially agreed after learning that federal prosecutors stood accused of secretly obtaining two months’ worth of telephone records from the journalists—in what the news agency described Monday as “a serious interference with AP’s constitutional rights to gather and report the news.”
Both men are well aware that the Justice Department was pursuing alleged leaks by a government official, and that national-security issues had been raised. But they are also aware of the guidelines established in the Watergate era to balance national security and First Amendment concerns. And in the spirit of Lindsay—who said, “Those who suppress freedom always do so in the name of law and order”—Leahy and Goodlatte have both recognized an essential duty to defend press freedom.
The wrangling over government intrusion on what is supposed to be a free press is as old as the Republic. John Adams and Thomas Jefferson clashed over the issue before the Bill of Rights was ten years old, and no decade has passed since then without a dispute. As recently as 2008, the FBI apologized to The Washington Post and The New York Times when it was revealed that the agency had improperly obtained the phone records of reporters in Indonesia.
Even if the fight is an old one, however, it is essential that officials with oversight authority move immediately when it rises anew.
That’s why the rapid responses of Goodlatte and Leahy were as encouraging as they were necessary.
Both Leahy and Goodlatte raised real concerns and demanded real answers from Department of Justice officials who seem to have forgotten that a free press must be free from arbitrary and overreaching government surveillance.
“Any abridgement of the First Amendment right to the freedom of the press is very concerning,” said Goodlatte. “The House Judiciary Committee will thoroughly investigate this issue and will also ask Attorney General Eric Holder pointed questions about it at Wednesday’s oversight hearing.”
Goodlatte’s statement was valid—and important.
But it was even more important that Leahy voiced his parallel concern.
“The burden is always on the government when they go after private information—especially information regarding the press or its confidential sources,” said the Senate Judiciary Committee chairman. “I want to know more about this case, but on the face of it, I am concerned that the government may not have met that burden. I am very troubled by these allegations and want to hear the government’s explanation.”
Attorney General Holder’s testimony Wednesday before the House Judiciary Committee was hardly revealing, as Holder explained that he had recused himself from the matter.
But that can’t be the end of the inquiry—or the response to it.
Strikingly, Leahy was backed up in his call for answers and action by an angry Senate Majority Leader Harry Reid, D-Nevada, who described the Justice Department’s seizure of the phone records as “inexcusable” and added, “There’s no way to justify this.” Reid went even further, saying Tuesday, “In my career, I’ve stood consistently for freedom of the press from encroachment by the national security community and will continue to do that. It’s an issue I feel very strongly about and will look further whether more legislative action is needed in this regard to secure freedom of the press.”
What might that mean? With encouragement from the White House, Senator Chuck Schumer, D-New York, is preparing to reintroduce the media shield law that in 2009 died in the Senate. Among other things, the proposed law gives journalists who have been served subpoenas the option of appealing to a federal judge when they don’t want to reveal their sources. It then falls to the jurist—as opposed to the Department of Justice—to determine whether the public interest in a story trumps the government’s demand that sources be revealed,
“This kind of law would balance national security needs against the public’s right to the free flow of information,” argues Schumer. “At minimum, our bill would have ensured a fairer, more deliberate process in this case.”
When the Department of Justice in a Democratic administration is accused of wrongdoing, it is vital that Democratic leaders in Congress step up to ask the tough questions—just as it is vital for Republican members of Congress to be out front to check and balance Republican administrations.
Congressional oversight often comes with a partisan edge, and that’s not entirely inappropriate. Partisanship animates and energizes oversight committees, ensures that inquiries are pursued and rejects bureaucratic responses.
Ultimately, however, congressional oversight is most effective when it comes from members of the party that controls the executive branch. The United States does not have a parliamentary system of government. Rather, our Constitution outlines a separation of powers between the branches of government. The separation was not designed to encourage partisan division but to assure that there would always be a checking and balancing of power—regardless of party affiliation or allegiance.
Intense partisanship often leads members of Congress to “go to their corners.” And rarely has the partisanship been more intense, more bitter, than now.
But Patrick Leahy has rejected the defensive position into which the weakest of partisans collapse. Instead, he has gone into the same checking-and-balancing stance that has been adopted by Bob Goodlatte. This is as it should be. When it comes to defending the freedom of the press, the chairs of the House and Senate Judiciary Committees should, regardless of party, regardless of ideology, be positioned firmly and unequivocally on the side of the First Amendment.
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