How to avoid another Justice raid on reporter phone records

Americans look to both government and the press to protect their interests. But when the two institutions battle over who better defends those interests – especially on national security – it’s time for each side to strike a deal.

That should now be the case in light of the news that the Justice Department had secretly obtained two months’ worth of phone records belonging to The Associated Press. The investigation is part of a hunt for someone in government who leaked information to the AP last year about a thwarted terrorist plot in Yemen.

The leak, claims Attorney General Eric Holder, “put the American people at risk,” although he didn’t say much more about whether such risk was imminent. And, he contends, the AP was not told beforehand of the records search because it might have jeopardized the investigation (again, not elaborating).

The AP, however, says the search was a serious interference on its right to gather news and offer anonymity to sources. The AP also has a good record, as do many news organizations, of working with officials if it can be shown how a news story in the works might jeopardize national security or endanger lives.

This case highlights the need for a rebalancing of the trust and mistrust between government and the media in dealing with national security. Mr. Holder seemed to indicate as much on Wednesday when he called for an “after-action analysis” of what he calls the “AP case.” Many in Congress back the AP against the Obama administration’s intrusion on the inner workings of reporters.

Both current law and numerous court rulings have yet to set clear limits on the kinds of government actions against the press. While the issues are difficult – a need for government secrecy versus the need for media to be the watchdog – what binds both institutions is that they serve the same public. Each has a role in protecting Americans in its own way. On that basis, media representatives and the federal government should be able to find common ground on rules or proposed laws that would set a safe balance between their overlapping roles.

The Justice Department has its own guidelines, dating back four decades, on how far it would go in compromising a reporter’s rights in a search for a security leak. Its wide combing of the AP records seemed to bend those guidelines very far, and with very little explanation.

Especially troubling is that Justice did not allow a judge to question whether the threat to national security was sufficiently high to justify the search. Nor did a court determine if Justice had done enough to find the source of the leak before needing to step on the First Amendment.

Letting courts have more of a balancing role between the press and executive branch would be a good first step in preventing another case like this. Justice’s powers over the press are now too broad and vague. And forcing journalists to disclose the identity of their confidential sources is itself a risk to national security. Even in a warlike threat like terrorism, government needs to be held accountable. And as a Supreme Court ruling in 1989 stated, government must recognize “the timidity and self-censorship which may result from allowing the media to be punished for publishing truthful information.”

Both reporters and government intelligence agencies are seeking the truth for the sake of the American people. In fact, these biblical words are displayed in the lobby of the CIA’s headquarters: “And ye shall know the truth, and the truth shall make you free.” For all their differences, the two sides should be able to redefine their relationship with that common goal in mind.