By Jordy Yager
A bipartisan group of House lawmakers unveiled a bill on Wednesday that would force the Department of Justice (DOJ) to get a federal court’s approval before seizing records from journalists.
The move comes in response to growing concerns from both parties on Capitol Hill that the DOJ may have violated the First Amendment rights of Associated Press and Fox News employees by seizing their telephone and email records in a pair of separate investigations into national security leaks.
“This was nothing short of, in my opinion, a massive intimidation fishing expedition,” said
“We believe it’s time for Congress to intervene and take action to preserve and protect the First Amendment that we all believe in. So we should revise and revisit U.S. law and require in all cases judicial review before the government can secretly investigate those who keep the public informed.”
Poe was joined Wednesday by Democratic Reps. John Conyers Jr. (Mich.), Sheila Jackson Lee (Texas) and Jerrold Nadler (N.Y.) along with their Republican colleague Rep. Trey Radel (Fla.), who formerly worked as a journalist for CNN and CBS, among other outlets.
Conyers, the ranking member on the House Judiciary Committee, said the bill — entitled the Free Flow of Information Act of 2013 — would require the DOJ to prove to a federal judge that department officials have exhausted all other avenues of getting information for an investigation and that there is a clear national security threat.
“The Department of Justice could not have acted under its own say-so [under this bill],” said Conyers. “The Department of Justice would have had to convince a court by preponderance of the evidence that the request met specific requirements.”
“The Department of Justice would need to show that they tried to get the information through all other reasonable sources or that the information is critical to a civil or criminal investigation and that the Department of Justice would not be able to get the records if they were not able to show that there was a significant harm to national security.”
At the urging of the Obama administration, Sen. Charles Schumer (D-N.Y.) has introduced a companion measure in the upper chamber, which has garnered bipartisan support from Sen. Lindsey Graham (R-S.C.).
The DOJ came under fire last week after it was revealed that it secretly subpoenaed the phone records of more than 20 reporters and editors with the AP as part of an ongoing criminal investigation by the U.S. attorney for D.C. into the undisclosed release of information from a government official to the media.
Attorney General Eric Holder testified last week before the House Judiciary Committee — which has launched an investigation into the matter — that he recused himself from the case because he was interviewed by investigators as someone with access to the secret information in question and a possible source of the leak. He said he handed some of his telephone records over to investigators as well.
Deputy Attorney General James Cole has taken the lead on the case for the DOJ and assured the president of the AP that the department had interviewed more than 550 people and had exhausted every other means of getting the information it claims to need.
But lawmakers on Wednesday balked at the lack of oversight in the DOJ’s subpoena process, arguing that a federal judge would provide an added layer of scrutiny to help determine whether the rights of journalists were being adequately protected.
Several members have criticized the DOJ for not notifying the AP ahead of the subpoena in an attempt to enter into negotiations.
Under the government’s internal Code of Federal Regulations, the DOJ is required to negotiate with members of the news organizations it is seeking phone records from only if “the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought."
An aide for the House Judiciary Committee’s Democrats said that the Free Flow of Information Act of 2013 would supersede this set of internal DOJ rules, requiring the department to seek a judge’s approval before deciding to forego attempts at negotiating with news organizations.
Further criticism arose this week when it was revealed the DOJ tracked the movement of a Fox News reporter in and out of the State Department building, in addition to examining his private email and phone records in an attempt to get more information into a State Department leak.