Government Secretly Seizes Associated Press Phone Records

[BridgeTroll]

There really is no reason to worry... everything is under control...

http://www.huffingtonpost.com/2013/05/16/obama-ap-scandal_n_3287165.html

WASHINGTON -- President Barack Obama said Thursday a "balance" should be struck between national security interests and freedom of the press, in response to a question about the Justice Department's decision to subpoena the phone records of the Associated Press.

"Leaks related to national security can put people at risk, they can put men and women in uniform that I've sent into the battlefield at risk," Obama said, while declining to comment on the pending case.

"U.S. national security is dependent upon those folks being able to operate with confidence that folks back home have their backs, so they're not just left out there high and dry."

Obama said he made "no apologies" for being concerned about national security but that the free flow of information was important to him as well.

Attorney General Eric Holder said Wednesday that his second-in-command, Deputy Attorney General James Cole, had signed off on the AP subpoenas. Obama said Thursday he had "complete confidence" in Holder.

Obama rebuffed a comparison between his governing style and that of former President Richard Nixon.

"I'll let you guys engage in those comparisons," Obama said. "You can read the history and draw your own conclusions."

[NotNow]

This is actually a story of the courts:




May 14, 2013
The Law Behind the A.P. Phone-Record Scandal

Posted by Lynn Oberlander


The cowardly move by the Justice Department to subpoena two months of the A.P.’s phone records, both of its office lines and of the home phones of individual reporters, is potentially a breach of the Justice Department’s own guidelines. Even more important, it prevented the A.P. from seeking a judicial review of the action. Some months ago, apparently, the government sent a subpoena (or subpoenas) for the records to the phone companies that serve those offices and individuals, and the companies provided the records without any notice to the A.P. If subpoenas had been served directly on the A.P. or its individual reporters, they would have had an opportunity to go to court to file a motion to quash the subpoenas. What would have happened in court is anybody’s guessâ€"there is no federal shield law that would protect reporters from having to testify before a criminal grand juryâ€"but the Justice Department avoided the issue altogether by not notifying the A.P. that it even wanted this information. Even beyond the outrageous and overreaching action against the journalists, this is a blatant attempt to avoid the oversight function of the courts.

It is not, again, as if the government didn’t have options. The D.C. Circuit (in a 2005 opinion upholding a finding of contempt against the Times’s Judith Miller and Time’s Matt Cooper for refusing to testify about who had disclosed Valerie Plame’s identity as a C.I.A. operative) has held that there isn’t a First Amendment privilege for journalists to refuse to testify before a criminal grand jury, as has the Second Circuit (in a 2006 case in which the government was trying to find out who told the Times about a planned raid on two foundations suspected of providing aid to terrorists). In the wake of the decisions, there was a renewed effort to pass a federal shield lawâ€"though the proposed law would not have provided absolute protection in cases of national securityâ€"but, with the rise of WikiLeaks, that discussion died.

The Times’s case provides the facts most similar to the A.P.’s. The prosecutor had asked the Times to provide phone records; when the Times refused, he threatened to get the records directly from the phone companies. The Times then went to court and sought a declaratory judgment that its records were protected by reporter’s privilege. The Second Circuit ruled that phone recordsâ€"even those held by a third party, such as a phone companyâ€"were subject to the same common-law privilege that would apply to the journalists’ own records. However, the court noted that there wasn’t a constitutional privilege to refuse to disclose such records to a criminal grand jury, and that any common-law privilege would be not absolute but “qualified”â€"meaning that it could be overcome by a compelling government interest. The Circuit, however, declined to define the privilege, other than to say that it wouldn’t stand up in the case before it.

Crucially, though the Times lost that case, 2â€"1, all of the judges agreed that government could not act unilaterally, without judicial review. As Judge Sack said in dissent:

For the question… is not so much whether there is protection for the identity of reporters’ sources, or even what that protection is, but which branch of government decides whether, when, and how any such protection is overcome.
He added, “Judge Winter’s opinion makes clear that the government’s demonstration of ‘necessity’ and ‘exhaustion’ must, indeed, be made to the courts, not just the Attorney General.”

In the A.P.’s case, though, the latter is exactly what did happen. (Though since Eric Holder, the Attorney General, said Tuesday that he recused himself, that demonstration wasn’t even made to him, but to someone else in the Department of Justice.) The Department of Justice chose to avoid the court systemâ€"and its independent check on the Department’s powerâ€"by serving its subpoenas directly on the phone companies without telling the A.P. In so doing, it apparently relied on an exception to its own policy of notifying a media company in advance of a subpoena if doing so “would pose a substantial threat to the integrity of the investigation.”

If, as has been reported, the grand jury is investigating the leak of information concerning the C.I.A. foiling in Yemen of an Al-Qaeda plot to bomb an airliner heading to the United States, it is hard to understand how a later request for phone records would pose a threat to the integrity of the investigation. This request for two months of records was ostensibly made after the calls were made. If the government had a suspicion that one of its employees was the leak, it could go to a court itself and seek a wiretap of that employee. (Of course, they would have to make a showing of probable cause, which they were able to skip by going directly to the A.P.’s phone companies.) There would seem to be no reason not to let the media organization know that it wanted phone records of calls already madeâ€"after all, what was the rush? Let the courts decide whether the Justice Department really needs those records or not.

Lynn Oberlander is the general counsel of The New Yorker.



Read more: http://www.newyorker.com/online/blogs/newsdesk/2013/05/ap-phone-record-scandal-justice-department-law.html&utm_source=feedly?printable=true&currentPage=all#ixzz2TVhbpKPp

[spuwho]

Shades of Nixon all over this.

[spuwho]

Isn't it crazy how the 'liberal' media actually holds the 'liberal' administration accountable on the principles?

Jamie Dupree is calling it a "Rebellion in the Press Room"

[carpnter]

Isn't it crazy how the 'liberal' media actually holds the 'liberal' administration accountable on the principles?

They've been giving Obama a pass until the administration did something that affected the press. 

Regarding your other question.  I wanted the government to do something, thousands of people had just been killed by a group of radicals determined to kill as many Americans as they can.  At the time I was working 50-60 hours a week and was woefully uninformed on what was in the bill, but I wanted something done to help make sure this couldn't happen again.  So I, like most of the public, wanted something right now instead of getting the right laws passed. 

It was a flawed bill and while there were some good things in it, the items in it that infringe the rights of Americans, make it a bad bill and it should not have been passed in the form that it was in.

[Lunican]

As you can see from the articles I posted this was already going on in 2006. So I guess no one realized at the time that these powers extended beyond the current presidency? Live and learn I guess.

[carpnter]

Isn't it crazy how the 'liberal' media actually holds the 'liberal' administration accountable on the principles?

They've been giving Obama a pass until the administration did something that affected the press. 

Regarding your other question.  I wanted the government to do something, thousands of people had just been killed by a group of radicals determined to kill as many Americans as they can.  At the time I was working 50-60 hours a week and was woefully uninformed on what was in the bill, but I wanted something done to help make sure this couldn't happen again.  So I, like most of the public, wanted something right now instead of getting the right laws passed. 

It was a flawed bill and while there were some good things in it, the items in it that infringe the rights of Americans, make it a bad bill and it should not have been passed in the form that it was in.

totally incorrect.  The Press has been criticizing him all along, just not on the crazy made up nonsense like 'terrorist fist bumps' and 'actually kenyan'.

So you were for this kind of power.  Ok.  Thanks for being honest.

I'll admit I let my emotion affect my judgement and supported this bill, like the majority of Congress.  Looking at it now I am more than willing to admit had I looked it without letting emotions get involved I would not have supported it at all, just because of the civil liberty issues alone. 

[NotNow]

^^^ Now THAT is funny.  ^^^

[JeffreyS]

In an interview with Fox News’ Greta Van Susteren, Rep. Trey Gowdy (R-SC) threw cold water on hopes that the Justice Department’s surveillance of Associated Press reporters’ phone records could lead to legislation preventing similar incidents in the future. Gowdy noted that the surveillance occurred in no small part because Republicans demanded such an investigation in 2012:

http://www.foxnews.com/on-air/on-the-record/index.html#http://video.foxnews.com/v/2382334063001/american-people-at-risk-versus-freedom-of-the-press/?playlist_id=86925

He also goes on to say how else would they investigate leaks.

To me this is scandalous but again is not on the White House.

[peestandingup]

Isn't it crazy how the 'liberal' media actually holds the 'liberal' administration accountable on the principles?

They've been giving Obama a pass until the administration did something that affected the press. 

Regarding your other question.  I wanted the government to do something, thousands of people had just been killed by a group of radicals determined to kill as many Americans as they can.  At the time I was working 50-60 hours a week and was woefully uninformed on what was in the bill, but I wanted something done to help make sure this couldn't happen again.  So I, like most of the public, wanted something right now instead of getting the right laws passed. 

It was a flawed bill and while there were some good things in it, the items in it that infringe the rights of Americans, make it a bad bill and it should not have been passed in the form that it was in.

totally incorrect.  The Press has been criticizing him all along, just not on the crazy made up nonsense like 'terrorist fist bumps' and 'actually kenyan'.

So you were for this kind of power.  Ok.  Thanks for being honest.

Wasn't it solely Fixed News (Fox) who said those things though? Hardly what I would call "the press" in general.

The sad fact is, all the major networks & news outlets are owned by only a handful of giant corporations, who all have their own agendas, own backings, etc & are playing this little game. They back & bet on putting these people in power (all the way up & down the chain of command) like they're betting on a horse race. So they indeed want something for their money. And you can bet Obama & most of Congress wouldn't be there unless they played ball. The last guy who didn't play was JFK, and you see how that ended.

This isn't fantasy conspiracy crap, its real life. Whoever doesn't see it is either blind, or way too caught up in playing ra ra for their team. Because apparently in this country we all treat politics like its a football game between arch rivals now, talking smack & finger pointing.

[BridgeTroll]

http://www.thedailybeast.com/articles/2013/05/21/how-hope-and-change-gave-way-to-spying-on-the-press.html

How Hope and Change Gave Way to Spying on the Press
by Kirsten PowersMay 21, 2013 4:45 AM EDT

Much of the Fourth Estate shrugged when the Obama administration attacked Fox News, writes Kirsten Powers. But now it’s coming for them, too.

First they came for Fox News, and they did not speak outâ€"because they were not Fox News. Then they came for government whistleblowers, and they did not speak outâ€"because they were not government whistleblowers. Then they came for the maker of a YouTube video, andâ€"okay, we know how this story ends. But how did we get here?

Turns out it’s a fairly swift sojourn from a president pushing to “delegitimize” a news organization to threatening criminal prosecution for journalistic activity by a Fox News reporter, James Rosen, to spying on Associated Press reporters. In between, the Obama administration found time to relentlessly persecute government whistleblowers and publicly harass and condemn a private American citizen for expressing his constitutionally protected speech in the form of an anti-Islam YouTube video.

Where were the media when all this began happening? With a few exceptions, they were acting as quiet enablers.

It’s instructive to go back to the dawn of Hope and Change. It was 2009, and the new administration decided it was appropriate to use the prestige of the White House to viciously attack a news organizationâ€"Fox Newsâ€"and the journalists who work there. Remember, President Obama had barely been in office and had enjoyed the most laudatory press of any new president in modern history. Yet even one outlet that allowed dissent or criticism of the president was one too many. This should have been a red flag to everyone, regardless of what they thought of Fox News. The math was simple: if the administration would abuse its power to try and intimidate one media outlet, what made anyone think they weren’t next?

"What I think is fair to say about Fox … is that it really is more a wing of the Republican Party," said Anita Dunn, White House communications director, on CNN. “[L]et's not pretend they're a news network the way CNN is." On ABC’s “This Week” White House senior adviser David Axelrod said Fox is "not really a news station." It wasn’t just that Fox News was “not a news organization,” White House chief of staff Rahm Emmanuel told CNN’s John King, but, “more [important], is [to] not have the CNNs and the others in the world basically be led in following Fox, as if what they’re trying to do is a legitimate news organization …”

These series of “warnings” to the Fourth Estate were what you might expect to hear from some third-rate dictator, not from the senior staff of Hope and Change, Inc.

Yet only one mainstream media reporterâ€"Jake Tapper, then of ABC Newsâ€"ever raised a serious objection to the White House’s egregious and chilling behavior. Tapper asked future MSNBC commentator and then White House press secretary Robert Gibbs: “[W]hy is [it] appropriate for the White House to say” that “thousands of individuals who work for a media organization, do not work for a ‘news organization’?” The spokesman for the president of the United States was unrepentant, saying: “That's our opinion.”

Trashing reporters comes easy in Obama-land. Behind the scenes, Obama-centric Democratic operatives brand any reporter who questions the administration as a closet conservative, because what other explanation could there be for a reporter critically reporting on the government?

Now, the Democratic advocacy group Media Mattersâ€"which is always mysteriously in sync with the administration despite ostensibly operating independentlyâ€"has launched a smear campaign against ABC News reporter Jonathan Karl for his reporting on Benghazi. It’s the kind of character assassination that would make Joseph McCarthy blush. The main page of the Media Matters website has six stories attacking Karl for a single mistake in an otherwise correct report about the State Department's myriad changes to talking points they previously claimed to have barely touched. See, the problem isn’t the repeated obfuscating from the administration about the Benghazi attack; the problem is Jonathan Karl. Hence, the now-familiar campaign of de-legitimization. This gross media intimidation is courtesy of tax-deductable donations from the Democratic Party’s liberal donor base, which provides a whopping $20 million a year for Media Matters to harass reporters who won’t fall in line.

In what is surely just a huge coincidence, the liberal media monitoring organization Fairness and Accuracy in the Media (FAIR) is also on a quest to delegitimize Karl. It dug through his past and discovered that in college he allegedlyâ€"horrors!â€"associated with conservatives. Because of this, FAIR declared Karl “a right wing mole at ABC News.” Setting aside the veracity of FAIR’s crazy claim, isn’t the fact that it was made in the first place vindication for those who assert a liberal media bias in the mainstream media? If the existence of a person who allegedly associates with conservatives is a “mole,” then what does that tell us about the rest of the media?

What all of us in the media need to rememberâ€"whatever our politicsâ€"is that we need to hold government actions to the same standard, whether they’re aimed at friends or foes. If not, there’s no one but ourselves to blame when the administration takes aim at us.

[JeffreyS]

I believe in the freedom of the press to investigate and present their stories. I don't believe they have any freedom from investigation. Has the administration used these investigations to bully or prosecute the press?

It appears that congress asked the justice department to investigate leaks to the press which they did. Has there been a specific illegal act here?

I am not trying to be an apologist here just trying to wrap my mind around this "scandal".

[Ocklawaha]

Should the media expect less from a president that got his news through the English language editions of Pravda and China Daily, while he was at the University? Since his reelection his game has been insane policy with a heavy handed 'media management.'

But hey? What do I know? The guy has the ability to run a Soviet style gulag and sell it to the public as a 'bone meal plant food factory.'