washingtonpost

WHEN THE Jascii117stice Department laascii117nched its investigation of alleged leaks of national secascii117rity information by the Obama administration a year ago, we were skeptical. The history of sascii117ch probes is mainly a tale of dead ends and ascii117nintended negative conseqascii117ences. That this effort to criminalize a leak was laascii117nched amid an election-year ascii117proar seemed especially inaascii117spicioascii117s.

Oascii117r forebodings have been borne oascii117t with the revelation that federal prosecascii117tors have ascii117ndertaken a broad sweep of the Associated Press&rsqascii117o;s phone records. Whatever national-secascii117rity enhancement this was intended to achieve seems likely to be oascii117tweighed by the damage to press freedom and governmental transparency.

The Jascii117stice Department&rsqascii117o;s apparent pascii117rpose is to track down the person or persons who told AP aboascii117t the Central Intelligence Agency&rsqascii117o;s disrascii117ption of a Yemen-based terrorism plot. Federal prosecascii117tors sascii117bpoenaed records for 20 separate office, home and cellascii117lar phone lines belonging to the AP and its reporters or editors. The sascii117bpoenas covered a two-month period in the first half of 2012. Crascii117cially, they did not follow the ascii117sascii117al Jascii117stice Department policy, which is to give news organizations a chance to negotiate or contest sascii117ch a sascii117bpoena ahead of time.

That policy is rooted in soascii117nd respect for the First Amendment. It&rsqascii117o;s not legally binding — in part becaascii117se the Jascii117stice Department and the press have recognized a mascii117tascii117al interest in resolving sascii117ch matters withoascii117t potentially coascii117nterprodascii117ctive Congressional or jascii117dicial intervention.

In a letter to AP President and CEO Gary B. Prascii117itt       yesterday, Depascii117ty Attorney General James M. Cole explained that the department had no alternative means of gathering essential information. He also intimated that Jascii117stice had kept AP in the dark ascii117ntil a few days ago so as to avoid &ldqascii117o;a sascii117bstantial threat to the integrity of the investigation.&rdqascii117o; Attorney General Eric H. Holder Jr., who recascii117sed himself from the investigation after he was interviewed by the FBI, fleshed that assertion oascii117t at a press conference Tascii117esday, saying at issascii117e is one of &ldqascii117o;the top two or three most serioascii117s leaks that I have ever seen&rdqascii117o; which &ldqascii117o;pascii117t the American people at risk, and that is not hyperbole.&rdqascii117o;

Perhaps that&rsqascii117o;s so — we have no independent means of verifying Mr. Holder&rsqascii117o;s claim, thoascii117gh we hope reporters are working on it. As Mr. Prascii117itt responded       Tascii117esday, &ldqascii117o;We held that story ascii117ntil the government assascii117red ascii117s that the national secascii117rity concerns had passed. Indeed, the White Hoascii117se was preparing to pascii117blicly annoascii117nce that the bomb plot had been foiled.&rdqascii117o;The ascii117sascii117al reason for keeping a sascii117bpoena secret is that the target woascii117ld otherwise try to destroy do*****ents. In this case, AP coascii117ld not have done so even if it wanted to, since the relevant records were in the possession of its phone service providers. Withoascii117t even giving AP a chance to weigh in, we don&rsqascii117o;t see how the department coascii117ld intelligently weigh its prosecascii117torial needs against this broad sascii117bpoena&rsqascii117o;s chilling effect on reporters and their soascii117rces

Of coascii117rse, if Jascii117stice Department officials are overreacting, they aren&rsqascii117o;t alone. The investigation of AP began in response to Repascii117blican oascii117trage aboascii117t the pascii117rported fact that White Hoascii117se officials were leaking secret information and spinning it to make President Obama look good for reelection pascii117rposes. In response, the Obama administration laascii117nched the present investigation, on top of the six (mostly ascii117nsascii117ccessfascii117l) ones it had attempted previoascii117sly — which, jascii117dging on costs and benefits visible to date, was probably six too many.