Earlier this month, the US Justice Department informed the Associated Press (AP) that federal law enforcement had — without notice — seized two months of telephone records of more than 20 AP editors and reporters, including mobile and home phones. While the Justice Department didn’t specify the reason for the seizure, its timing points to leaks regarding the Central Intelligence Agency’s (CIA) disruption of a Yemen-based terrorist plot to bomb an airliner last year.
Charlie Savage and Leslie Kaufman, writing for the New York Times report that the AP had the story, but held off publishing it “for several days” at the request of the White House.
Savage and Kaufman cite a letter from Gary Pruitt, AP’s president and chief executive, to US Attorney General Eric Holder in which Pruitt writes, “These records potentially reveal communications with confidential sources across all of the news gathering activities undertaken by the AP during a two-month period, provide a road map to A’s news gathering operations, and disclose information about A’P’s activities and operations that the government has no conceivable right to know.” Ordinarily, such a records seizure — which does not require a warrant but does require the attorney general’s signature on a subpoena — would be prefaced with a notice and allowance for a court-challenge to the subpoena. But that apparently didn’t happen in this case.
The telephone records seizure is part of a massive attempt by the Obama administration to stop leaks. “Under President Obama, six current and former government officials have been indicted in leak-related cases so far, twice the number brought under all previous administrations combined,” write Savage and Kaufman.
Holder defended the records seizure as a justified response to an article that “put the American people at risk, and that is not hyperbole.” But the AP held the article “for several days” at the request of the White House, so presumably any threat had passed. Holder also said that he had recused himself from the case after he was questioned by the Federal Bureau of Investigation (FBI) during its investigation; Holder’s deputy, James Cole, issued the subpoena for the AP telephone records.
The most surprising outcome of this event — with the Internal Revenue Service’s (IRS) targeting of conservative nonprofits coming along for the ride — is, as Glenn Greenwald points out in his Guardian piece, the corporate media’s sudden realization that “President Obama has a very poor record on civil liberties, transparency, press freedoms, and a whole variety of other issues on which he based his first campaign.”
President Obama’s initial response to the AP telephone records seizure (the White House insists it had nothing to do with it) was as calculated as it was cynical: He called to revive the national shield law. Unfortunately (and predictably) the Free Flow of Information Act is just about as toothless as shield laws could possibly get. In theory it would protect journalists from having to reveal sources and documents; in practice, well, not so much. Under the proposed legislation, the government would have to merely convince a judge that the information it seeks outweighs the benefit of the journalist’s confidentiality. The First Amendment to the US Constitution is first for a reason. More importantly, any shield law — at any level of government — should apply to the practice of journalism and not be limited to credentialed professionals.
In a shell game, Holder appeared before the House Judiciary Committee where he was able to respond to questions by stating that he had recused himself from the case and wasn’t involved in the decision. Further, because the investigation continues, his deputy James Cole — the person who actually issued the subpoena for the AP phone records seizure — might not be able to answer questions either. So there.
The next day, the one-line Telephone Records Protection Act (.pdf; 23.7KB) was introduced in the US House by Representatives Justin Amash (R-Michigan), Zoe Lofgren (D-California), Mick Mulvaney (R-South Carolina), and Jared Polis (D-Colorado). The proposed legislation would require the federal government to obtain a probable-cause warrant from a judge by stating “specific and articulable facts” proving the information being sought is “relevant and material to an ongoing criminal investigation.” Its coverage would not be limited to journalists.