Approving Use of Wiretap, Judge Deals Blow to Free Press

Journalism took another hit yesterday when a federal judge ruled the government could legitimately tap the phones of anyone handling “material that is not generally available to the public.”

As one observer noted, that’s just what a free press traffics. “If the press could only report on ‘information generally available to the public,’ there would be no need for a press,” secrecy expert Steven Aftergood told JTA.

The ruling came in the AIPAC case, which deals with two pro-Israel lobbyists’ receipt of classified intelligence from a Pentagon official. The two lobbyists had challenged the use of the Foreign Intelligence Surveillance Act by investigators to secretly record their conversations. But the judge ruled that “collection or transmission of material that is not generally available to the public” qualifies as an activity that could merit wiretapping under FISA.

As noted in JTA’s story on the ruling (sub. req.), such a broad justification could have ramifications for journalists:

Free-speech advocates, already alarmed by the prosecution’s unprecedented use of a 1917 statute that criminalizes the mere receipt of classified information, found new grounds to worry in this ruling.

Steven Aftergood, who heads the Secrecy Project for the Federation of American Scientists, a nuclear watchdog, said he was alarmed by Ellis’ classification of the “collection or transmission of material that is not generally available to the public” as meriting a surveillance act wiretap warrant.

“That could qualify us for a FISA warrant,” Aftergood told JTA. “That’s at the core of a free press.”

The judge also ordered an investigation into how CBS News and other media companies learned of the AIPAC probe in late August of 2004. The DOJ has until the middle of September to tell the judge who in the government leaked news of the probe to CBS.

These are just the latest in series of bad turns for journalists, especially investigative reporters. The Justice Department has launched two high-profile probes to expose and prosecute the leaking of classified information — first the Plame investigation, and more recently, the investigation into The New York Times story on the NSA warrantless wiretapping progam.