By Abdulillah
As you maybe aware, a big flap is occurring in the United States of America (USA) with regards to the US Department of Justice’s (DOJ) seizure of phone records of the Associated Press (AP), where more than 20 telephone lines of its offices and journalists, that included their personal cellphones and home phones records were seized without prior notification or reason for their seizure to the AP offices.
Many have postulated that the reasons for this seizure was due to the fact that the Obama Administration had concerns of a leaked story about a year ago, where the AP reported on a Central Intelligence Agency (CIA) thwarting of a possible Yemen based terrorist plot to bomb an airliner, as well as other stories. It should be pointed out that the AP did inform the Obama Administration that is was going to publish the article, however withheld it for several days at the request of the Administration, because of the CIA operations were still unfolding and only revealed it later when the Administration was going to reveal it themselves in a news conference.
The occurrence of these phone taps has put the Journalists and their Journalist organizations and the Obama administration and DOJ at opposing ends, where the Obama administration is defending its right under the law to stop these possible government leakers/whistle blowers to reveal sensitive government information and the rights of Journalist’s to obtain such stories without the government resorting to draconian and possible very intrusive methods of how they gather this information.
This intrusiveness of government according to the Press is supposedly protected under the US Constitution’s First Amendment in the Bill of Rights which prohibits the government of making any law that “infringes on the freedom of the press” , that protects the press from “prior restraint” or in almost all cases pre-publication censorship of information and opinions.
Now what I would like to do in the article is first to layout some reasoning with regards to the pro’s and con’s related to this story, and secondly would like your opinions based on this reasoning and how you feel we in Jordan should behave, both on the governments side and the that of the press. Please understand I am not here to advocate for one side or the other but I thought it wise to debate this issue as it relates to our own specific press freedoms and possible government intrusion.
So first let’s tackle the specific issue at hand. Did the US government have the right to use seized phone records to determine the possible leaks to the AP?
Well the US congress (the legislature of the people, equivalent somewhat to our own Lower Parliament), as recently as 2012 was in an uproar about leaks of sensitive government information, where in June of 2012 the House Intelligence Agency Chairman –Mike Rogers was moaning about several leaks and wanting to empower the Executive branch and DOJ in the prosecution of the leakers related to Iranian nuclear enrichment and cyber-warfare to the New York Times newspaper, where he was quoted as saying “We must put together legislation quickly that moves to give the tools to the intelligence community to prevent this from happening in the future.”
Now of course since the story about the AP there is some backtracking on this by some in the US Congress like Senator McCain who also originally bemoaned the leaks happening where he is quoted as stating “It depends. If it’s a wide net and let’s throw it out there and see what we catch, that’s one thing. If you have specific information about an individual, then that’s the Valerie Plame affair. Then you go after that individual that breached national security, so that varies.” By the way if you do not know the story of Valerie Plame, it basically was a leaked story (later postulated that the Bush Administration leaked this information) that revealed that Valier Plame was a CIA agent all to discredit her husband who was against the Bush Administration’s contention that the Nuclear- Yellow Cake was being manufactured by Nigeria for the use by Iraq.
Now as you can see we have what appear to be some conflicting standards here as follows:
1. Should the legislature (US House of Congress or our Parliament) try its best to stop highly sensitive government information and make laws easier for the government to find these leakers especially if they are government employee’s? Or should we protect the freedom of the press from this intrusion?
2. How far should these laws allow the government to find these leakers?
3. Should leakers or whistle blowers of government negligence be prosecuted under the law even if what they leaked was the truth, be it good or bad information about the government practice?
Many have stated that the government has no right at all to stop or intrude as it did against the AP journalist’s and agency as it was protected under the First Amendment against any unfettered access to this information and that if the government was to stop leaks it needed to not investigate the News Agency but its own personnel through other means.
Others have stated that the government has full power under the law to protect sensitive government secrets against any intrusion and should have full rights to prosecute the individuals as well as the News Agencies and Journalists who reveal this information to the public.
Others take the middle ground and they state that the government has the right to investigate the leaks, but does not have the right to prosecute or to infringe on the right of the press to obtain this information and publish it, nor does it have the right in the prosecution of it investigation to intrusively gather information through the seizing of phone records, or other draconian measures of journalists or news organizations to determine who and how the news organizations got this information.
So a bit more information is warranted here before I release you to your arguments for and against this question as follows:
The “prior –restraint” rule which basically means “prior-censorship or pre-publication censorship” does not allow any government to stop the publication of any information sensitive or not. Note that the “Prior-Restraint” rules do not prohibit the government from taking appropriate action, if the expression is later found to violate the law especially those affecting “National Security”.
In earlier views as expressed by William Blackstone in his Commentaries in the early 1700’s, states “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity. (4 Bl. Com. 151, 152.)” This very legal interpretation has been used in cases in the US Supreme Court such as Near v. Minnesota and Patterson v. Colorado.
It should be noted no such cases of “prior-restraint” have been brought by the government against Journalists and News Organizations during wartime until 1971 where the case (New York Times Co. v. United States) took place. Here the Nixon Administration took the New York Times and the Washington Post to court to stop the publication of the “Pentagon Papers”; top-secret United States Department of Defense (DoD) papers revealing the US involvement in the Vietnam War for 1945 to 1971, where the government attempted to use the “national security” exception of the “prior restraint” rule.
In this case (although nine differing rulings were published by each court justice), the court ruled in a six to three decision allowing the New York Times to publish the excerpts from the “Pentagon Papers”. It should be noted that the court only agreed with the lower court’s ruling that basically stated that the government did not meet its “heavy burden” of showing justification for “prior restraint” and that the First Amendment noted above has “absolute superiority” over government grounds for it use in this case. Here Justice Thurgood Marshal argued “that the term "national security" was too broad to legitimize “prior restraint”, and also argued that it is not the Court’s job to laws where the Congress had not spoken”.
In dissention was Chief Justice Warren E. Burger joined by Justices John Harlan and Harry Blackmun, who argued that in this particular case, the justices hastily and without reading the voluminous amount of papers and its possible societal repercussions, and where “free and unfettered press comes into collision with the effective functioning of a complex modern government” the court ruled too hastily in this particular case. However; none argued that the government had met the national security standard for exception under the “prior restraint rule”
Now that you have this information and some reasoning for and against this particular question at hand, where do you personally stand on this issue? How would you like us to define our own laws pertaining to this issue? Do you feel that we already have our own rules enshrined in governmental and religious laws and constitution? If so what are they and how are they applied?
God Bless Jordan and Its People
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