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Mark Seibel (McClatchy Newspapers): Seizure of a news organization’s phone records should be illegal as it limits the ability of journalists to investigate and report – something guaranteed by the Constitution

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in Baltimore.

The federal government, as most people know by now, seized two months of phone records from Associated Press. And now we learn that Verizon Wireless made no attempt of preventing the government from doing so or even asking permission to allow them to notify AP that the federal government was going to do so–in other words, secretly handed over these files. And many people have suggested, including AP itself, that AP’s constitutional rights to report and investigate as a news organization has been violated.

Now joining us to talk about all of this is Mark Seibel. He oversees McClatchy Newspapers’ foreign bureaus as chief of correspondents. He was formerly managing editor online for McClatchy Washington bureau’s website. He joined the bureau in 2003. He was editor in charge of international and national security coverage for The Miami Herald, where he directed two Pulitzer Prize winning reporting efforts.

Thanks for joining us, Mark.


JAY: So, first of all, tell us a little more about the basic facts as you know it. And then, how do you think this is going to affect newsrooms across the country?

SEIBEL: Well, here’s what we know is that back in May of last year, the AP got onto a story–it was a pretty interesting story–that the U.S. had broken up an al-Qaeda plot to send another underwear bomber to the United States. And the context of it was that it came a few weeks after the Obama administration had said, we have had no indication of an al-Qaeda plot of any sort on the United States in some time. So, obviously that wasn’t true.

The AP got onto this, that in fact the U.S. had broken up this plot. It involved a person in Yemen who was going to have another new underwear bomber without any metallic content that could be smuggled aboard an aircraft. Of course, it didn’t take place. It was broken up. But the AP got onto that story. The White House found out that they knew about it. And there was a back-and-forth for about a week in which AP was being asked not to report it. Finally AP decided, we’re going to report it. And then the next day the Obama administration also publicly announced that the plot had been broken up.

At some point after that, there was a referral that a leak had taken place about this secret operation, and the government moved secretly–without telling AP, anyway–to get the phone records of about 20 AP locations and people, including the two authors of the original story and several bureaus, several main numbers for the AP. So it was actually quite a broad request for information. The AP didn’t learn about that until last week, when the Justice Department wrote them a letter and said, by the way, we did this.

JAY: Right.

SEIBEL: And of course they’re outraged at it.

JAY: So, first of all, how does that affect you and people in your newsroom? I mean, have you always thought they probably are doing this anyway and you don’t find out about it? Or does this change things for you? Now you’re talking to a secret source, especially if you’re talking to some kind of whistleblower.

SEIBEL: Well, I think it has become clear, in the last five years, anyway, that this administration in particular is going after leakers. And our assumption has been for some time that if you are talking to a person who is providing you with classified information or classified documents and you write a story about it, that it is quite possible, or maybe even likely, that the government will move to find out who the person was who leaked the information and that they would do that by going through your computers, going through your phone records, monitoring your phone calls. And so none of that really surprises me. The scope certainly is outrageous. But I do think with this particular administration it’s not at all surprising. That was–.

JAY: Well, pick up on that point. You’ve used those words twice now. Why this particular administration? You mean worse than the Bush administration.

SEIBEL: Oh, far worse. The Obama administration has prosecuted more leak cases in its time in office than all presidential administrations previous combined. So this is an administration that is very tough on leakers and has demonstrated that by bringing case after case after case against people who have leaked. And they do it by, often, going through the reporters’ records to find out who the reporter got the information from.

JAY: So how does that affect how you work, then? Does that mean people–. When people phone in and they want to break something to you, like, do you get them–go outside and–. I mean, one can assume they also have reporters’ cell phones.

SEIBEL: Well, you know, I think there’s general caution. And certainly, you know, when we are involved in stories of this nature, there’s general caution about when you talk to a person, how do you talk to them, what do you say on email, you know, how much of it do you conduct electronically at all, you know, because all of that is potentially–can be subpoenaed. You know, we don’t really own the records of the phone company. We certainly–you know, it’s easy to get cell phone records or internet records, and, you know, we’ve gone to some–in some instances we’ve gone to great lengths. We wipe hard drives clean, save things on mobile hard drives, things that we can take with us, and just are generally cautious.

JAY: Now, when AP says their constitutional rights were violated, is that the case? I mean, do the current laws or practices–I mean, if they violate constitutional rights, in theory they’re illegal.

SEIBEL: Well, you know, I think that’s something we’ll have to test in court, whether this is a violation of the Constitution or not. You know, the Constitution basically says that news media and the press has the right to report things. And we think there is a corollary right that means you have to be able to get information, ask information, and that going after our sources prevents us from being able to do that, and therefore by extension is also unconstitutional. I think that has to be litigated, though, before we know that for certain.

Certainly, there are–we’ve seen a news reporter does not have the right in general to refuse to testify before a grand jury about the source of an article just because he’s a news person. Now, some places, not the federal government, but some states in the United States have shield laws that basically say a journalist can’t be forced to testify about his sources, but other places don’t. And we know in the instance of Judy Miller from The New York Times a few years ago, during the Bush administration, that she was jailed for several weeks because she refused to divulge her source on some of her Iraq reporting.

So I think it’s still out on whether it’s unconstitutional to do what the government did.

Should it be legal? Should it be encouraged? Well, I think the answer to that is it ought to be illegal, it ought not to be encouraged, that ought not to be the way that you go after leakers. Or in many cases the leakers are actual whistleblowers. They’re pointing out something that’s wrong, and they’ve been frustrated within their own organization to point it out, and so they want to go to the news media. And what this prevents is people doing that.

The leak we’re talking about wasn’t so much a whistleblower. I’m not sure where it came from. I remember at the time that there was quite a bit of upset in the British press about it, because while the CIA sort of claimed the operation, in fact the agent, the double agent who had uncovered the underwear bombing or plot, that double agent was actually a British double agent, not an American double agent. And the British were livid that the U.S. had made it public.

JAY: Now, just one part of the story which I don’t think has received much if any attention–and let me ask you. What do you think of AP agreeing not to run this story when they got this story? I mean, to what extent should a news organization sort of play ball on these things? Or should they just report it as they get it?

SEIBEL: Well, you know, it’s always complicated. At McClatchy, our tendency is that when we have something, we just report it. You know. If we think it’s a story, then we put it out.

But, you know, it’s a difficult thing when the federal government comes to you and says, you know, you’ve got–you’re risking this entire operation if you report this, or there are lives at risk if you report this. That’s a tough decision to arrogate to yourself if you don’t know all the answers.

Now, in this case, where American lives at risk, where–you know, I can’t really judge at what stage the double agent had been removed from danger, and so he was not at risk anymore, but I’m assuming that in the four or five days that the AP delayed, they were able to extricate this person from whatever situation he might have been in. But I think it’s very dangerous for news organizations, or at least they’re in a precarious position when they begin playing footsie on these kinds of deals.

And of course we’ve had examples where The New York Times, for example, delayed until after Bush’s reelection reporting that there had been massive electronic eavesdropping of Americans, which was something that they’d known about for a year and basically had been talked out of putting in the newspaper.

So I think it’s just dangerous to go down that road. We try not to put ourselves in a position where we feel obligated to play ball on that.

JAY: Alright. Thanks for joining us, Mark.

SEIBEL: Okay. Thank you.

JAY: And thank you for joining us on The Real News Network.


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Mark Seibel oversees McClatchy's foreign bureaus as Chief of Correspondents. Mark was formerly Managing Editor Online for the McClatchy Washington Bureau's website. He joined the bureau in 2003 as the editor in charge of international and national security coverage from The Miami Herald, where he directed two Pulitzer Prize-winning reporting efforts, expanded the reach of the paper's International Edition, and oversaw the paper's independent review of ballots from the 2000 presidential election.