Doorstep Subpoenas on NYT Reporters Demonstrate Why Congress Should Pass the PRESS ACT

​If you ever had the chance to get close to one of the standard U.S. Air Force Boeing 747s that often fly under the call sign Air Force One, you might have noticed some odd features you wouldn’t find on a commercial airliner.

Strange, iridescent lenses shimmer under the wings. Bulbs protrude from the lower body and wings. Weird antennas stick out here and there.

These are defensive measures meant to protect the president, his staff, and Air Force personnel from aerial assassination. The planes on which the president flies are equipped with infrared sensors that direct lasers to zap incoming missiles, as well as chaff and flare dispensers that can divert heat-seeking missiles away from the plane.

On Thursday, The New York Times reported that the new 747, gifted to the administration by Qatar, lacks much of the defensive suite found on the rest of the Air Force One fleet. It has also been reported that the plane is lacking much of the secure communications suite that would be critical in a global emergency.

Many of the new plane’s shortcomings are obvious.

The Times reported: “Different parts of the defensive systems are visible on the old Air Force One, under the wing of the plane and on its tail. They are not observable in photographs of the new Qatari plane.” The Times attributed this observation to an Air Force official who requested anonymity.

The Times also broke the story that President Trump, after attending a summit in Ankara, Turkey, was forced to fly on one of the older Air Force One models at the insistence of the Secret Service. Ankara is little more than an hour’s flight from Turkey’s border with Iran, whose regime has vowed to kill the president in retaliation for his strikes on its leadership.

On Friday, the administration reacted to this story by dispatching federal agents to the homes of four New York Times reporters who produced the story. They delivered subpoenas requiring the journalists to testify about their sources before a federal grand jury on Wednesday.

“The appearance of federal law enforcement agents on the doorstep of news reporters should shock the conscience of any American who believes in the Constitution and press freedom it protects,” The Times quoted its newsroom lawyer, David McCraw, in a statement.

Protect the First’s Take on the Story

As an organization that defends the First Amendment, we find the unusual delivery of subpoenas to the homes of journalists heavy-handed, even goonish.

As this case proceeds, count us skeptical that the four subpoenaed Times reporters revealed information that eluded foreign adversaries. We presume that foreign intelligence analysts can compare photos of the new and older planes. We also presume that foreign intelligence agencies understood exactly why the president was forced to change planes to return home.

This story is a textbook example of why we need a free press to reveal government incompetence and malfeasance. If the president has been flying around the world on an unsafe plane, and hundreds of millions of taxpayer dollars have been spent upgrading a Qatari plane that is still unsafe, that is information that the American people need to know.

Legal Jeopardy Remains

From the standpoint of the law, however, the position of the journalists is far from clear. If anything, this ongoing story reveals vulnerabilities in how federal law treats the press.

Under existing law, these reporters might face legal jeopardy if they received classified information about the security details of the plane. It is likely that they will refuse to divulge the names of their sources to the grand jury in New York on Wednesday. And if that happens, they will be subject to imprisonment. If you doubt this, consider the plight of former Times reporter Judith Miller, who spent 85 days behind bars.

What we take from this story is the need for a federal law, modeled after those in most U.S. states, that grants journalists limited protection for their confidential sources. The Protect Reporters from Excessive State Suppression Act is a bipartisan bill that has unanimously passed the U.S. House of Representatives. As with the state statutes, it would shield the confidential sources and notes of reporters from the prying eyes of prosecutors, with reasonable exceptions for emergencies.
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Passage of the PRESS Act would not grant blanket protection to reporters who divulge classified information that endangers national security. But it would level the playing field, so that the government doesn’t hold all the cards, showing up on reporters’ doorsteps to play the heavy.

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