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United States May 23, 2006
Alberto R. Gonzales
United States Department of Justice
935 Pennsylvania Avenue, NW
Washington , DC 20535
Dear Mr. Gonzales:
We write with growing concern about what appears to be an eroding respect in the Department of Justice for the absolute right of a free press to pursue the news without fear or favor.
The most recent instance was your appearance this past Sunday morning on the ABC program, This Week , on which you suggested that The New York Times journalists who reported on the National Security Agency’s monitoring of phone calls between the United States and countries abroad — a controversial subject of essential national importance — might be prosecuted for espionage.
As you remarked on This Week , “There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility.” You left unclear what those statutes might be. One speculation is that you might be thinking of the 1917 Espionage Act, which made it a crime to receive national defense information and transmit it. Never in the difficult history of the past 89 years has the Act been applied to American journalists
In the same week that USA Today published a disturbing account of secret eavesdropping on the phone calls of American citizens, our colleagues at ABC News — Brian Ross and Richard Esposito — reported that a senior federal law-enforcement official had advised them that the government is monitoring its phone calls in an effort to establish which sources the pair have drawn upon in their reporting. Reporters for The New York Times and The Washington Post , Ross and Esposito reported, may also be under surveillance as part of a widespread CIA leak investigation.
The New York Sun, a newspaper with a well-known pro-administration tilt, followed up with a similar report on May 16 th . According to the Sun , FBI sources confirmed to Vincent Cannistraro, a former CIA counter-terrorism chief, that the Bureau is monitoring the calls of a number of news organizations as part of a leak investigation — possibly in regard to reporting on the CIA’s detentions of terrorism suspects at locations outside the United States . Another speculative pretext is published accounts of the agency’s use of Predator drones in Pakistan .
This kind of secret prying into the private conversations of professional journalists is unworthy of our democracy, Mr. Gonzales. You know better than we do that the law has long required law-enforcement agencies which subpoena the phone records of journalists to notify those journalists within 90 days of obtaining the records. Neither ABC nor the Times has received any such notification. In any event, we remind you that when special prosecutor Patrick Fitzgerald sought copies of phone records from the Times in 2002 in connection with its reporting on an allegedly fake Islamic charity, a federal judge sided with the paper in its refusal to comply.
ABC has suggested that its records may have been obtained without normal due process under a “national security letter” created by the Patriot Act of 2001. No one knows, of course, and in the absence of straight talk from the Justice Department, rumors and suspicion are gaining traction.
The Freedom of the Press Committee of the Overseas Press Club of America frequently reminds authoritarian governments that good journalists are a foundation of great nations. No nation has ever been better served by its journalists than the United States . We trust that we do not need to remind you, Mr. Gonzales, that the private telephone records of reporters and editors deserve the full protection of the law.
Very truly yours,
Norman A. Schorr
Co-chairmen — Freedom of the Press Committee
77 West 66 th Street
New York , NY 10023
The New York Times
1627 I Street, NW
Washington , DC 20006
The New York Sun
105 Chambers Street
New York , NY 10007
Fax: (212) 571-9836
535 Madison Avenue
New York , NY 10022