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AP Monitoring Raises Fears of Government Overreach: How Far Will Obama Go to Crack Down on Leaks?

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David Cay Johnston, a Pulitzer Prize-winning journalist and president of Investigative Reporters and Editors, joins us to discuss the growing scandal over the Justice Department’s seizure of telephone records from Associated Press editors and reporters. The action came as part of a probe into the leaks behind an AP story about how U.S. intelligence thwarted a Yemen-based al-Qaeda bombing plot on a U.S.-bound airplane. “This is a very troubling aspect of this administration — it is hostile to the news media,” Johnston says. “They’re behaving much more like a corporation than like the people’s government.”

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This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: We’re speaking with David Cay Johnston, a Pulitzer Prize-winning journalist who’s also the current president of Investigative Reporters and Editors. I wanted to ask you about another matter, a big story this week in Washington. The Justice Department has admitted to seizing the work, home and cellphone records of almost 100 Associated Press reporters and editors. The action came as part of a probe into leaks behind an AP story about how U.S. intelligence thwarted a Yemen-based al-Qaeda bombing plot on a U.S.-bound airplane. During testimony before the House on Wednesday, Attorney General Eric Holder was asked about the probe and why the AP was not notified of the subpoenas beforehand.

ATTORNEY GENERAL ERIC HOLDER: I was recused in that matter. As I described, I guess, in a press conference that I held yesterday, the decision to issue this subpoena was made by the people who are presently involved in the case. The matter is being supervised by the deputy attorney general. I am not familiar with the reasons why the—why the subpoena was constructed in the way that it was, because I’m simply not a part of the—of the case.

REP. BOB GOODLATTE: It’s my understanding that one of the requirements before compelling process from a media outlet is to give the outlet notice. Do you know why that was not done?

ATTORNEY GENERAL ERIC HOLDER: There are exceptions to that rule. I do not know, however, with regard to this particular case, why that was or was not done. I simply don’t have a factual basis.

AMY GOODMAN: That was Attorney General Eric Holder speaking about the Justice Department’s seizure of the telephone records from AP editors and reporters. David Cay Johnston, you’ve said of the probe that journalists have a duty to watchdog the government and hold it accountable without surveillance or other interference. Talk about the probe and the attorney general’s defense at the hearing.

DAVID CAY JOHNSTON: Well, one of the important things to keep in mind about this, Amy, is that AP found out about this information, told the government what it had, and as responsible news organizations do, when the government said, “Please, we’re in the middle of an investigation. Hold off,” they held their story. Then the White House notified them that the next day it was going to go public about this, basically extending to AP the courtesy, because they had behaved well, of letting them break the story that they had held.

Now, the outrage you’re hearing from some members of Congress that this is something terrible the AP has done—and there are members of Congress saying that—is beyond belief, particularly for people who claim to be concerned about the Constitution, which, after all, includes a First Amendment to protect our religious, free speech, petition, assembly and press rights.

In this case, I don’t think that the attorney general is correct. I don’t think the exceptions apply here. There were no exigent circumstances. This was looking at something after the fact. And, you know, according to the FBI, they did 550 interviews, and they don’t know who the leaker is. That’s officially what they’re looking for: who spoke to the AP. If they don’t know, it suggests that in fact this may well be a story that came through some odd factor. I mean, the world is full of news stories that come about not because somebody issued a press release.

But this is a very troubling sign. The 4,200 members of Investigative Reporters and Editors, that I’m privileged to be the board president for, I’m sure will discuss this next month at our annual meeting in San Antonio, and we are taking steps to try and find out how far this reached and what the government is going to be doing in the future.

JUAN GONZÁLEZ: Well, speaking of that, during an interview with NPR on Tuesday, Eric Holder said he did not know how many other times his Justice Department had subpoenaed records of reporters.

ATTORNEY GENERAL ERIC HOLDER: I’m not sure how many of those cases that I have actually signed off on—I take them very seriously. I know that I have refused to sign a few, pushed a few back for modifications.

JUAN GONZÁLEZ: Well, it sounds like if he takes them very seriously, he would remember how many he had actually signed off on. But your comment?

DAVID CAY JOHNSTON: Well, let me—yeah, Juan, let me suggest, I mean, that he was asked of how many as a number, and I believe they’re going to be giving a written answer back to that. So I’m willing to cut him some slack about that.

But the Obama administration has been very, very troubling about all of these issues. Remember that President Obama in 2008 campaigned on a transparency and openness in government. I wrote a piece—I think I’m the first national journalist who wrote a highly critical piece of President Obama, nine days after he took office, about the simple matter of calling the White House press office. And I’ve been calling White House press offices back to Nixon. And I just asked the first person who answered the phone, you know, “What’s your name?” And immediately it was: “What do you want that for?” And I literally had people hang up. They wouldn’t say who they were. I mean, you don’t know if you’re talking to a secretary, an intern or a press secretary, or somebody who walked by and picked up a telephone.

And since then, I and many other journalists have observed that this administration, despite its public rhetoric, has repeatedly and continually been very difficult to deal with. I rate them worse than the Bush administration. And every single story that I wrote at The New York Times, with one exception, had Bush people on the record by name, rank and serial number. So, this is a very troubling aspect of this administration. It is hostile to the news media. It seems to have an attitude that if they don’t like the question, they don’t have to answer it. And it makes it very difficult and cumbersome to get responses from there. They’re be having much more like a corporation than like the people’s government.

AMY GOODMAN: Can you explain what the press shield law is? The Obama administration asked, apparently, Senator Schumer yesterday to reintroduce legislation that would help reporters protect the identity of their sources from federal officials. This is rather ironic that the Obama administration is calling for this law. But explain it.

DAVID CAY JOHNSTON: Well, the idea here is that reporters should be exempted from having to both identify sources that they have to the government as well as from the kind of surveillance that went on with the AP after the fact. I don’t think there’s any chance we’re going to get a surveillance law passed by this Congress, by the way; I think it’s absolutely zero.

But historically, governments—the American administrations have treated the press, certainly in the modern era, the last hundred years, with some deference about these matters; and at the same time, they have sometimes been very tough. Let’s remember that Bill Keller, the editor of The New York Times, was summoned to the White House office and literally threatened with the death penalty over investigative work The New York Times has done. At the same time, President Kennedy said the biggest thing he regretted, or one of the biggest things he regretted, was that he had gotten The New York Times to hold off on a story that it was going to run dealing with the Bay of Pigs.

Many of the things we need to know come from leakers and what the press reports the government doesn’t want to know. The government leaks every day anything it wants out. It’s what administrations don’t want to get out that we need to focus on. And if we want to be a free people, we need to have a robust press, and we need to have a press that’s aggressive, that doesn’t let officials work from press releases and canned statements, and doesn’t let them get away with not answering questions. We need to have a much more aggressive press corps, the kind of press corps that we had in the past, but certainly, I don’t think, have now.

JUAN GONZÁLEZ: But also, this hundred—getting records on a hundred reporters and editors, I mean, that’s obviously a situation where they got much more than they—even if they were trying to find a particular leaker, they got much more information. And I would think that would send a pall throughout anybody who’s dealing with the AP or anyone else who is providing information to an AP reporter.

DAVID CAY JOHNSTON: Yeah, the chilling effect here of this—this is a massive fishing expedition, and I don’t mean with a—with a line. This was a huge seine they put out trying to draw in everything—home records of reporters. Now, they didn’t record the calls; they just got records of calls, looking for whoever was leaking. But that’s the exact problem: It’s not that the AP reporters are intimidated; it’s that sources won’t come to people, and the government can operate as a power unto itself. We created our government, in this, the Second American Republic, to serve the people. We begin our Constitution with those words: “We the people.” And we need to make sure that the government never, ever, ever is run by people who think it is a power unto itself.

Now, that doesn’t mean that the government has to be powerless and that there aren’t exigent circumstances. You know, if the government thinks that someone is about to expose something that will cause real physical harm, I would be right up front saying, “OK, make them delay, if need be, for public safety.” But this has got to be very carefully looked at and watched at on a case-by-case basis, what the lawyers call facts and circumstances.

AMY GOODMAN: What’s interesting about the Obama administration asking Chuck Schumer to reintroduce the bill is, looking at The New York Times in 2009, Chuck Schumer is quoted as saying, “The White House’s opposition to the fundamental essence of this bill is an unexpected and significant setback. It will make it hard to pass this legislation.” Final comment, David Cay Johnston?

DAVID CAY JOHNSTON: Well, I think, though, that you’re seeing this administration trying to respond to all the criticisms it’s getting. Remember, 10 days after the president took office, the Republicans on Capitol had a meeting, and they said that—came out of it, and there have been accounts written of this, that their purpose was going to make sure this president didn’t succeed. You’re now seeing the president apparently recognize that he is under this tremendous pressure by people who don’t care about the welfare of the government as much as they do—in the people, as much as they do destroying him. So, you’re seeing some shifts in position. They’re good shifts. I’m glad we’re having them. But I don’t—cannot imagine that this Congress, particularly the House, is going to pass legislation to protect the news media, even though the news media is a broad range of groups, from the far right to far left, to absolutely straight news in the middle. The hostility to news by members of Congress, on both sides, but particularly right-wing Republicans—it’s just not going to happen.

AMY GOODMAN: David Cay Johnston, I want to thank you for being with us, Pulitzer Prize-winning journalist, writes about tax issues, president of the Investigative Reporters and Editors, former New York Times reporter, author of a number of books, including The Fine Print: How Big Companies Use “Plain English” to Rob You Blind. Special thanks to Rochester’s PBS station WXXI, where David was speaking to us from. This is Democracy Now!, democracynow.org, The War and Peace Report. Back in a minute.

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