The DOJ’s Press Probe

May 14 2013 @ 10:51am

Yes, the Department of Justice secretly collected the phone records of AP editors and reporters:

According to an article published by the AP, [the surveillance] may relate to its May 2012 article revealing an Al-Qaeda bomb plot. That plot, originating in Yemen, was targeted for the anniversary of the death of Osama bin Laden, but was foiled when the device was given to a CIA double agent. The AP broke the story, holding it for several days at the request of the White House. According to the AP, the reporters on that story owned numbers that were among those subpoenaed, indicating that Justice may be trying to identify the source of the leak.

Ben Smith calls it yet another example of Bush era policy shaped into a leaner form by Obama:

The Justice Department’s subpoena of phone records in a leak case probably shouldn’t be a surprise: This Administration has been remarkably, unusually aggressive in targeting leaks — a policy that has surprised and pleased some critics, while alienating traditional allies. But, paired with questions about the IRS and a broader edginess over pervasive surveillance, it’s a sleeper issue that seems poised to break outside its small circle of reporters and advocates.

This reaction, and this new fear, is in no small part the Administration’s fault. Obama has always sought to control elements of politics that couldn’t be controlled, and has an obvious affection for the surgical strike. But it also taps perfectly into the fears of the moment, in which futuristic visions of surveillance, hacking, impersonation, and drone war have become everyday powers of corporations, civilians, and the government.

Orin Kerr thinks this is a “non-story”:

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?

Jonathan Adler disagrees with Kerr:

This is hardly the first time the federal government has investigated the leak of national security information in the past dozen years, and yet this is the first time a seizure of this scope has been reported.  The AP’s letter of protest certainly suggests this was an unprecedented seizure with serious implications for the AP’s newsgathering operations across a range of areas, and that the requisite efforts to obtain the necessary  information through other means were not undertaken. Perhaps the AP is wrong on these point, and perhaps DoJ did everything that is required.  If so, there might not be cause for outrage.  But that would hardly make this a “non-story.”

And Drum hopes the practice will finally receive proper scrutiny:

The government has been obtaining phone records like this for over a decade now, and it’s been keeping their requests secret that entire time. Until now, the press has showed only sporadic interest in this. But not anymore. I expect media interest in terror-related pen register warrants to show a healthy spike this week.

That could be a good thing. It’s just too bad that it took monitoring of journalists to get journalists fired up about this.