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Defend Us, And Our Liberties

Peter Souza

Mark Gordon - published on 05/17/13 - updated on 06/08/17

On the AP phone record scandal

The Obama Administration is doing its best to prove the old adage that bad news comes in threes. Last week, the so-called “Benghazi Whistleblowers” testified before Congress, raising real questions about whether the Administration misrepresented the origin and nature of the attack on the American consulate in Benghazi, Libya last September. Then the story broke that the Internal Revenue Service had targeted conservative and Catholic groups, and perhaps even some individuals, for special scrutiny during the months and years leading up to the 2012 election.

This week, the Administration hit the trifecta when it was revealed that the Department of Justice (DOJ) had secretly obtained the records of 20 phone lines of Associated Press (AP) editors and reporters, including cell and home phones.  The seizures took place in April and May of 2012, but the AP was only notified late last week in a letter sent by Ronald Machen, the US Attorney for Washington, D.C. The letter offered no reason for the seizure, but the AP believes it is connected to an ongoing investigation into leaks that led to a May 7, 2012, AP story about the attempted bombing of an airliner. In the story, the AP reported that the plot, hatched in Yemen in the spring of 2012, had been foiled by a CIA operation in that country. In a statement issued Tuesday, Attorney General Eric Holder confirmed the investigation into a leak, which he said, “put the American people at risk and that is not hyperbole. Trying to determine who was responsible required very aggressive action." Holder also said that he had recused himself from the decision of whether or not to seek a subpoena to seize the records.

The government does have the right to subpoena and obtain phone records, even from journalists, but only under very strict rules. According to DOJ regulations, such a subpoena should be focused on “relevant information regarding a limited subject matter and should cover a reasonably limited time period,” and ought to be “as narrowly drawn as possible.” The regulations also prescribe that the government should make an attempt to obtain information from alternative sources, must notify and negotiate with the targeted media organization first, and that any motion for subpoena must be personally approved by the Attorney General. In light of those criteria, it’s clear that the DOJ seizure was an unprecedented overreach. Its scope was not limited to phone records for reporters and editors involved in the May 7 story, but included phone lines used by scores of AP journalists. The duration was also remarkable, extending well beyond the actual publication date of the original story. According to the AP, there was no notification, much less a negotiation. And the Attorney General says he recused himself from the decision.

This situation is far from inconsequential; by its very nature, an organization like the AP simultaneously reports on scores of stories involving the federal government, including many that rely on anonymous sources inside the government itself. Dragnets like the one conducted by the DOJ last year risk the ability of the press to gather news and uncover wrongdoing. Even the DOJ itself recognizes that the “freedom of the press can be no broader than the freedom of reporters to investigate and report the news.”

The AP reacted predictably. On Monday, May 13, CEO Gary Pruitt wrote to Attorney General Holder, stating flatly that, “We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.” A letter from the Reporters Committee for Freedom of the Press and 50 other large news organizations, including Dow Jones Company, Scripps, Reuters, The New York Times, and the American Society of News Editors, has joined Pruitt’s protest. The signatories demanded the return of all records, the destruction of any copies, and immediate disclosure of any other active media subpoenas.

Politicians from both sides of the aisle in Congress also reacted negatively. On the left, Vermont Senator Patrick Leahy said, “I am very troubled by these allegations and want to hear the government’s explanation.” On the right, Senator Rand Paul said that such seizures should require a judicial warrant, even when national security is invoked. “If we allow the government, any government, to make those decisions willy-nilly without a judge ruling on this,” he said, “they’ll always say everything’s in our national security interest.” Some members of both parties were reportedly looking to revive a proposed 2009 bill that would provide the media with a shield against any disclosures of sources that had been promised confidentiality.

This incident is just the latest in a long line of encroachments on civil liberties in the name of the “War on Terror.” The Foreign Intelligence Surveillance Act (FISA) of 1978, as amended by the USA Patriot Act of 2001 and subsequent reauthorizations, as well as the National Defense Authorization Act and various presidential directives, now permit the government to:

  • Conduct warrantless wiretapping and surveillance operations against American citizens both in and out of the country;
  • Scan all email and telephone traffic with algorithms that search for keywords;
  • Search the private records of American citizens, including bank accounts and even library histories;
  • Arrest and indefinitely detain American citizens without charge in military facilities; and
  • Assassinate American citizens abroad at the discretion of “informed, high-level” government officials.

The First Amendment to the Constitution forbids the federal government from “abridging the freedom of speech, or of the press.” The Fourth Amendment reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The government has the obligation to “provide for the common defense,” but not at the expense of the Bill of Rights. We all know the old phrase, “eternal vigilance is the price of liberty.” Freedom of the press, including the right of media organizations to be free from unlawful searches and seizures, is one of the central pillars of the Republic because the press stands vigil on the parapet, looking into the night. If the watchman is removed, the night grows very dark indeed. 

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