Not after Reporters ... Just Their Sources
Feldstein, Mark, News Media and the Law
Earlier this year - a few weeks after columnist Jack Anderson died and several months after he donated his archives to my university - two FBI agents showed up at my home, flashed their badges and demanded access to these decades-old documents.
I was surprised by the FBI's sudden interest in journalism history and asked what crimes the Bureau was investigating. "Violations of the Espionage Act," Special Agent Leslie Martell replied. The agents acknowledged that the statute of limitations had expired on any possible crimes committed that long ago but still wanted to root through our papers because even such old documents might demonstrate a "pattern and practice" of leaking.
Apparently, the FBI wants to prosecute people who might have whispered national security secrets decades ago to an investigative columnist who is now dead.
Ironically, for the past five years the FBI and other federal agencies have refused to turn over similar historical records to me under the Freedom of Information Act, even though almost all the people named in them are now dead. The government claims it would violate their privacy, jeopardize national security or - in the most absurd argument of all - compromise "ongoing law enforcement investigations."
The federal agents told me their criminal probe involved lobbyists for the American Israel Public Affairs Committee (AIPAC) and requested that I inform them of the names of reporters who had once worked for Jack Anderson and who had pro-Israeli sources. I told them I felt uncomfortable passing on what would be secondhand rumors.
If I didn't want to name names, Agent Martell said, she could mention initials and I could nod yes or no. That was a trick Robert Redford and Dustin Huffman used in the movie "All the President's Men." I didn't name any initials, either.
I tried to explain to the agents why it was extremely unlikely there could be anything in our files relevant to their criminal case: Jack Anderson had been sick with Parkinson's disease since 1986 and had done very little original investigative reporting after that.
If the agents had done even rudimentary research, they would have known that. The fact that they didn't was disquieting, because it suggested that the Bureau viewed reporters' notes as the first stop in a criminal investigation rather than as a last step reluctantly taken only after all other avenues have failed. That's the standard the FBI is supposed to use under Justice Department guidelines designed to protect media freedom. These guidelines were first drawn up under Richard Nixon's administration and have worked well for the past generation.
"We're not after the reporters," Agent Martell tried to assure me. "Just their sources."
I did not find that a comforting explanation. For academics, at the most mundane level, archival records may be lost or destroyed if police paw through them before they can be catalogued for posterity. Universities like my own may find it more difficult to persuade officials to preserve or donate their papers because of concern about government fishing expeditions. Freedom of inquiry and the public's ability to know the truth about its history could be weakened. For journalists, sources may be scared off from confiding in reporters about wrongdoing if they have reason to fear that the government will find out about it by rifling through journalistic files even past the grave. At a minimum, targeting dead reporters could serve as a back door approach to chipping away at the legal concept of journalistic privilege that has been afforded the press for decades. And the public understandably won't trust the press if it's turned into an arm of law enforcement.
By itself, what happened with the Anderson archives is small and extreme to the point of absurdity. In an age of terrorism with genuine and immediate national security threats, why is the FBI wasting its time trying to go through old archives of a dead reporter? …