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May 17 2013

Is the Seizure of AP Phone Records a Scandal?

There’s an interesting debate going on at the Volokh Conspiracy over whether the story about the DOJ seizing phone records of innumerable AP reporters and editors is a real story or not. Orin Kerr, who is a libertarian-leaning law professor and therefore generally likely to oppose unnecessary searches and seizures, declares it a non-story at this point:

But a different picture emerges if you look past the AP’s spin. DOJ is investigating a leak of national security information to AP reporters that culminated in a May 7, 2012 story that disclosed details of a CIA operation in Yemen that stopped a terrorist plot in early 2012. The story had the byline of five AP reporters. DOJ opened an investigation into the leak to the AP, and pursuant to its published special rules on investigations involving the media investigations, issued subpoenas to find out what numbers were dialed from the relevant AP reporters during the months of April and May 2012. Presumably the thinking is that AP reporters called their sources, and the investigators want to trace the phone numbers to see who the sources might be. As far as I can tell, the information collected by the subpoena concerned the work and personal phone numbers of the five reporters and their editor, as well as the general AP office numbers where the reporters were located and for the main number for the AP in the House of Representatives press gallery. The AP knows about this because pursuant to DOJ’s policies found in 28 C.F.R. 50.10, the government was required to give the AP notice that the records were obtained. The AP received that notice in a letter on Friday, and then today (Monday) it released its AP story expressing AP’s outrage. That’s pretty much all we know so far.

Based on what we know so far, then, I don’t see much evidence of an abuse. Of course, I realize that some VC readers strongly believe that everything the government does is an abuse: All investigations are abuses unless there is proof beyond a reasonable doubt to the contrary. To not realize this is to be a pro-government lackey. Or even worse, Stewart Baker. But I would ask readers inclined to see this as an abuse to identify exactly what the government did wrong based on what we know so far. Was the DOJ wrong to investigate the case at all? If it was okay for them to investigate the case, was it wrong for them to try to find out who the AP reporters were calling? If it was okay for them to get records of who the AP reporters were calling, was it wrong for them to obtain the records from the personal and work phone numbers of all the reporters whose names were listed as being involved in the story and their editor? If it was okay for them to obtain the records of those phone lines, was the problem that the records covered two months — and if so, what was the proper length of time the records should have covered?

But Jonathan Adler respectfully disagrees:

As Orin notes, the Justice Department has special rules for this sort of thing. Yet there are reasons to doubt whether the government followed these rules. Among other things, the government is required to take “ all reasonable steps to attempt to obtain the information through alternative sources or means,” including attempts at negotiations with the media source before any request for a subpoena is made, unless the Assistant Attorney General concludes such negotiations would pose a “substantial threat” to the investigation…

UPDATE: To place this in further context, it’s worth remembering the FBI has a history of obtaining phone records without following the relevant guidelines.

SECOND UPDATE: Another reason I don’t believe this is a “non-story” is because seizures of this sort have potentially significant implications for newsgathering organizations. Further, insofar as the relevant guidelines vest the Justice Department with substantial discretion, how such discretion is used is a matter of significant import. I agree with Orin that it’s possible that the Justice Department acted properly here (though I suspect I’m more inclined to see this particular seizure as overbroad), but that does not mean that the threat of such seizures does not have the potential to chill investigative journalism. In my view, the federal government should, insofar as is possible, focus more on the leakers than on those who receive the leaks.

Whether the DOJ’s actions were technically illegal or not is not really the important question, in my view. I’d like to know if these were administrative subpoenas or judicial subpoenas. Were they approved by a judge, a grand jury or a DOJ or FBI employee? In other words, did they actually have to make the case to some party other than themselves that the seizure of those records was necessary and limited in scope? Such safeguards are incredibly important. Adler is right to point out that this kind of power has been routinely abused by the government before.

But there are a couple of other broader issues that are very important. The first is the obvious hypocrisy. Washington leaks like a sieve. Every single day someone in Congress, the White House or some federal agency is leaking information to reporters. Most of the time those leaks are sanctioned and intentionally designed for a purpose, they’re not whistleblowers. Such leaks have many purposes — to undercut an opponent or even an ally (this happens far more often than you might think), to send up a trial balloon to see what the public reaction is, to put pressure on someone else within the government, to put up a false front suggesting that Congress or the administration is about to do some extreme action X in order to make it more palatable for them to do less extreme action Y (this is a standard negotiating technique) and so forth. Strategic leaks are a routine part of how Washington works.

Every once in a while, a leak is not sanctioned or strategic. On relatively rare occasions, someone leaks information because they see something going on that is illegal or unjustified and they think the public should know about it. The most famous examples would be Daniel Ellsberg, who leaked the Pentagon Papers, and Deep Throat, who leaked all that information that sparked Watergate and brought Nixon down.

But here’s the thing: it’s often very difficult, if not impossible, for a reporter to know which is which. Every source says the same thing: “Okay, I’m going to tell you this, but you can’t link my name to the story. I could get fired for giving you this information.” So what happens when this kind of broad seizure of phone records takes place? It doesn’t stop the strategic leaking because those people already know they won’t be targeted for investigation (the government only prosecutes those who leak stuff they don’t want leaked). But it does put a big chill on those who might otherwise be inclined to leak important information about genuine illegality and misconduct. The more likely they think they are to get caught, the less likely they are to make the decision to reveal what is going on because they face serious consequences, including going to prison.

Now think for a moment about how different our history would be without such whistleblowers. How much illegal conduct by our government would we not know about? More than 100 reporters may have lost valuable sources over this. What will we not find out that we might otherwise have found out as a result? That’s why this is a story.

25 comments

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  1. 1
    Ben P

    As someone who reads Volokh a lot, it’s important to recall that Kerr is libertarian, but among the more liberal bloggers there. (The other being Dale Carpenter), while Jonathan Adler is one of the more conservative members, although he’s not a pure hack like some of the other bloggers there.

  2. 2
    trucreep

    @1 Ben;

    I think that’s an important distinction to note for sure, it almost goes against so-called conventional wisdom that they have taken those positions.

    They are two of my favorite bloggers at Volokh (I have you to thank for introducing it to me, Mr. Brayton!), so both of them having a conversation on this is very interesting. Jonathan Adler offers up healthy opposition (usually) to the more liberal leanings, often to the ire of the readers who comment. Even if you disagree with what he says, he offers it up objectively (usually) and intelligently.

    Orin Kerr is also a very intelligent guy, and he looks at things very analytically, or at least usually from a purely legal perspective. I find he often challenges what I’ve sort of gotten comfortable thinking, and his perspective is very insightful, and I think especially important if you ever wanted to look at how you would legally pursue taking action against something.

    I guess my point is that it’s very rare to have two intelligent and thoughtful people discuss and analyze something so complex and important as this. You’ll usually just find partisan BS from both sides, so this is refreshing.

  3. 3
    Ben P

    I guess my point is that it’s very rare to have two intelligent and thoughtful people discuss and analyze something so complex and important as this. You’ll usually just find partisan BS from both sides, so this is refreshing.

    Well for the most part Volokh is very heavy on analytical discussion. Prof. Volokh, Kerr, Adler, Somin and Bernstein and a few others are all nationally recognized experts in their fields and very good thinkers as well as being very “even keel” on virtually every issue they address.

    Bernstein is very good, but has blinders on in any issue regarding Israel.

    Todd Zwyicki is very good on some things, but is a blatant shill for banks and financial companies.

    David Kopel is ok on some things, but a shill for anything involving gun rights (which is mostly what he posts about).

    Jim Lindgren is pretty much a conservative hack.

  4. 4
    davidworthington

    Ed said: “But it does put a big chill on those who might otherwise be inclined to leak important information about genuine illegality and misconduct”. This sounds intuitively correct to me; however, is it factually demonstrable? Does anybody have any empirics that would show that there is a “big chill”? I’m particularly interested in something more than anecdotal.

    Thanks,

    Dave

  5. 5
    trucreep

    @4 Dave

    Only thing that comes to mind off the top of my head is a few journalists saying that they’ve noticed this kind of effect. But that’s not quite hard evidence there. I’d be curious to see that too.

  6. 6
    atheist

    Libertarians are such a bunch of bullshit artists. They have never cared about civil liberties. They only care about corporate power, and if the rights of some person unaffiliated with a corporation are infringed, they generally couldn’t care less.

  7. 7
    atheist

    Stephen Walt has some good perspective on the AP scandal.

    Excerpt:


    To make all this work, of course, our leaders have to try to manage what we know and don’t know. So they work hard at co-opting journalists and feeding them self-serving information — which is often surprisingly easy to do — or they try to keep a lot of what they are really doing classified. And when the country’s national security policy is increasingly based on drone strikes, targeted killings, and covert operations — as it has been under the Obama administration — then the government has to go after anyone who tries to shed even partial light on all that stuff that most U.S. citizens don’t know their government is doing.

  8. 8
    slc1

    Re atheist @ #7

    Stephen Walt says: And when the country’s national security policy is increasingly based on drone strikes, targeted killings, and covert operations — as it has been under the Obama administration — then the government has to go after anyone who tries to shed even partial light on all that stuff that most U.S. citizens don’t know their government is doing.

    Translation: The Obama Administration is a wholly owned subsidiarity of the International Zionist Conspiracy.

  9. 9
    Ben P

    Libertarians are such a bunch of bullshit artists. They have never cared about civil liberties. They only care about corporate power, and if the rights of some person unaffiliated with a corporation are infringed, they generally couldn’t care less.

    Yep, a group of some of the most respected law professors in the country are really nothing more than a bunch of chuckleheads shilling for corporate interests. There’s absolutely no way they could possibly have reached the views the hold by a good faith process. Nope, nosiree

    /sarcasm

  10. 10
    atheist

    @slc1 – May 17, 2013 at 6:03 pm (UTC -4)

    Read the rest of Mr. Walt’s piece. There is nothing in there about conspiracy theories or Zionists. Walt is simply pointing out how a fear-based foreign policy inevitably leads to wars that are not in the national interest. And when this happens, the state has reason to be secretive because if the public gets a clear look at the foreign policies, the public will not support the policies.

    And so we end up with the Obama administration demanding phone records of the Associated Press in an attempt to chill discussion about our warfare in Yemen. This is not a new dynamic, it’s just a contemporary version of what existed under Nixon. We have an administration trying to keep control of the press, because the more the public knows about our foreign wars, the less the public will support them.

  11. 11
    atheist

    @ Ben P – May 17, 2013 at 6:04 pm (UTC -4)

    What can I say? In my experience, Libertarians are happy to support government intrusion into our private lives, or authoritarian police-state tactics, just so long as no corporations are affected. There are some libertarians who don’t feel that way, such as Radley Balko. But overall, that’s what I’ve repeatedly seen libertarians do.

  12. 12
    David C Brayton

    If this were a case where people’s lives were put in imminent jeopardy, it might be warranted. Most folks would agree that the disclosure of a CIA operative’s identity (or a source’s identity) while undercover should not be allowed and should be criminally punished.

    But I simply don’t believe Obama in light of his terrible record on civil rights. The inhumane treatment of Bradly Manning and Guantanamo prisoners, the abuse of the state secrets privilege, his drone policy (where imminent means something entirely different than every definition ever written for that word), that fucking moronic position he took on the morning after pill….

    I really thought a constitutional scholar would be a bit more respectful on the Constitution. Truly, he is just as bad as Bush II.

  13. 13
    atheist

    Perhaps I am delusional, but I still suspect that at least on some issues, Obama would be make more liberal choices if he felt he could, or if he were pushed. I wish Biden or someone else would push him to make these liberal choices. Not only would it benefit the public, but might improve his image.

  14. 14
    Ed Brayton

    atheist wrote:

    Libertarians are such a bunch of bullshit artists. They have never cared about civil liberties. They only care about corporate power, and if the rights of some person unaffiliated with a corporation are infringed, they generally couldn’t care less.

    Thank you for proving the point of my earlier post so perfectly. Pure tribalism and shallow thinking.

  15. 15
    Ed Brayton

    Why would Biden push him on civil liberties? His track record is every bit as bad. Biden is one of the most zealous drug warriors in politics. He wrote the bill that allow civil asset forfeiture, for crying out loud. The Democrats just aren’t anywhere near as pro-civil liberties as they pretend to be when a Republican is in office. There are big differences between the two parties, but not when it comes to executive power.

  16. 16
    atheist

    @Ed Brayton – May 17, 2013 at 7:09 pm (UTC -4)

    Why would Biden push him on civil liberties?

    The example I was thinking about was the way Biden pushed Obama to take a stand on Gay Marriage last year. It was widely remarked upon at the time.

    I’m not claiming that Biden’s stance on press freedom is better than Obama’s, but I suspect that there are other areas where Biden– or someone else– could push Obama the way Biden did. For instance, on the “morning after pill” issue, look at the way Judge Edward Korman is already pushing the Obama administration to support wider access for this form of contraception. I wonder what would happen if someone else started pushing Obama on this issue as well.

    I’m not claiming that the Democrats are very good on civil liberties, but I do think they are better than the Republicans. And I also think they’re overall better – on that issue – than the conservative sub-group we call “Libertarians”. I feel the reputation Libertarians have for caring about civil liberties is undeserved.

  17. 17
    slc1

    Re atheist @ #10

    Prof. Walt doesn’t have to say it in any particular article. His entire thesis is that the State of Israel, through it’ agents such as AIPAC, is responsible for the wars we have gotten ourselves involved in in the Middle East. He and his comrade in arms, Prof. John Mearsheimer, wrote an entire book on the subject.

  18. 18
    atheist

    @slc1 – May 17, 2013 at 7:55 pm (UTC -4)

    Prof. Walt doesn’t have to say it in any particular article. His entire thesis is that the State of Israel, through it’ agents such as AIPAC, is responsible for the wars we have gotten ourselves involved in in the Middle East. He and his comrade in arms, Prof. John Mearsheimer, wrote an entire book on the subject.

    You’re misrepresenting the argument of Mr. Mearshimer & Mr. Walt in their 2006 essay, and the book created from the essay. They do not claim that Israel is responsible for what the US does in the Middle East. They claim — accurately in my opinion — that the Israel Lobby has an outsized influence on US politics, and is partly responsible for the Iraq War of 2003, as well as other US actions in the region. They argue that the policies that the Israel Lobby pushes for are not only counter to US interests in the region, but also counter to long-range Israeli interests.

    Not everything that Mr. Walt writes is about the Israel Lobby. In this case, he is talking about the long-term effects of fear-based foreign policy. That situation is much bigger than Israel and its lobby.

  19. 19
    d.c.wilson

    If I were to sum up the AP scandal it would be that I don’t think any laws were broken, but it does highlight the fact that our laws for how wide a net the DOJ can cast with a subpoena are broken.

  20. 20
    Doc Bill

    No, it was all done within the limits of the law. The Justice Department went through legal channels to do what they did and even NOTIFIED the freaking AP!

    What’s the big deal?

    Don’t like the law then let’s change the law.

    Sorry, but I believe their should be a “chill” on people who leak classified information and, yes, their jobs should be on the line.

    Want to talk to Woodward, meet in a parking garage.

    Modern kids. Such wimps.

  21. 21
    Joey Maloney

    Translation: The Obama Administration is a wholly owned subsidiarity of the International Zionist Conspiracy.

    FALSE! Everyone knows the Obama administration is a joint venture of IZC, the Illuminati, and the Bilderbergs. We recently fought off attempts by the Lizard People to acquire a voting stake.

    The root problem is the decades-long abuse of the classification system. If we didn’t have ample reason to believe that many, even most, things are classified not because they are vital to national security, but because they are embarrassing to the government or some individual in the government, there’d be less reason to consider this on its face as an overreach.

  22. 22
    dingojack

    So Mr Adler –
    There are doubts that the government ‘followed the rules’ are there? Got any substantive proof of that, or is it simply a bald statement masquerading as ‘fact’? Oh I see the government is allowed to do this as long as there is ‘a reasonable attempt through other means’ and/or that ‘the Attorney General considers that attempting to negotiate with the media company (for example) would create ‘substantial risk to the investigation’. Any proof they didn’t try other means? Any proof that the AG didn’t think that tipping the company off might lead to the source of the leaks going to ground? Hmm no, seems that just a flat statement is all the proof you need.
    First update: Is this relevant to the case at hand? Or is it simply a way of tarring the ‘ebbul gubbernant’ with same brush to cover the fact that you lack facts to support your ‘argument’?
    Second update: You believe it has ‘a significant effect on newsgathering organisations’ and has a ‘chilling effect’ on journalism. And I believe that sending me a million dollars a week for the rest of my life is the only moral thing to do. So what? Where is the evidence to substantiate your ‘beliefs’?*
    Dingo
    - – - – -
    * Note also ‘government didn’t follow the rules’, than ‘the FBI has broken the rules’ and finally ‘ the Government did follow the rules, but it’s still bad’ ‘cause I say so that’s why so shut up!) Very convincing.

  23. 23
    democommie

    On a related note.

    I’ve seen a CBS video that indicate the reptilicans actually did the editing on at least some of those WH e-mails.

    “White House version: “We need to resolve this in a way that respects all of the relevant equities, particularly the investigation.”

    GOP version: “We must make sure that the talking points reflect all agency equities, including those of the State Department, and we don’t want to undermine the FBI investigation.”

    —————————————————–

    White House version: “The penultimate point could be abused by members to beat the State Department for not paying attention to Agency warnings.”

    GOP version: “The penultimate point is a paragraph talking about all the previous warnings provided by the Agency (CIA) about al-Qaeda’s presence and activities of al-Qaeda.”

    I’m not sure that it means, oh, much of anything, except that the GOP are a group of lying ratbag fucktards.

  24. 24
    CaitieCat, in no way a robot nosireebot

    I don’t think people are really getting at the rational response to this. It’s not “show me the chill”, because basically you’re asking to prove a negative: show me that there are things not happening because of this. That’s inherently one of the most difficult proofs to provide.

    But take a least-harm approach, and the very possibility that legitimate whistleblowers – like Deep Throat and Ellsberg – would be discouraged from taking their incredibly courageous stand, should be sufficient to take very seriously the thought of hoovering up (pun very much intended) a journalist’s phone records. Do you really want to argue that unless someone can prove the negative, you think it’s fine for the government to just routinely scoop up months of journalists’ records of whom they contacted, all to catch someone who allegedly leaked secrets? Do you have that much confidence in your government’s good-faith behaviour? Cause honestly, their history over the last…well, couple of hundred years or so, doesn’t exactly inspire that much good faith in me.

    And let’s be clear: I’m Canadian. We’re more or less genetically predisposed to trust the government; our founding words aren’t “Life, Liberty, and the Purfuit of Happinefs” but “Peace, Order, and Good Government”. But I wouldn’t want my government taking this potentially chilling action because of the enormous cost if the chill happens. It’s basic expected-value computation, folks. The probability may be low, but the cost is very, very high.

  25. 25
    dingojack

    Carrleat – He made the assertions; he’s got to provide the evidence to back his assertions
    a) Did the Government follow it’s own procedures or not? He says not. Where’s the evidence?
    b) .He stated that there are exceptions that allow this behaviour. Were those exemptions followed or not? He says not. Where’s the evidence?
    c) He claims that this will have a ‘chilling effect’. Has it done so in the past? (Have the number of whistle-blowers increased, decreased or stayed the same after the past alleged incidences?). He says it caused a downward trend. Where’s the evidence?

    Or perhaps, like WND, he’s ‘only asking questions’.

    Dingo

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