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On the AP Spying

[ 94 ] May 14, 2013 |

Three points on this story:

  • The subpoena of phone records is probably legal.  I wouldn’t say anything definitive until we know all the details, but under existing law the First Amendment doesn’t provide a shield for journalists and Congress hasn’t created a statutory shield.  A subpoena, unlike a search warrant, doesn’t require judicial approval.
  • And, yes, the attacks from Republicans in Congress who supported the Bush administration’s actually illegal warrantless wiretapping and are a major part of an institution that can only be bothered to counter presidential powers when presidents make the political mistake of trying to advance the ball in a pro-civil liberties direction, are staggeringly disingenuous.
  • Having said both of these things, this doesn’t mean that I agree with Orin Kerr that this is therefore a “non-story.”  The First Amendment is a floor, not a ceiling — even assuming arguendo that the subpoena was legal, this doesn’t make it an appropriate exercise of executive power.  There are good reasons to spy on the activities of journalists only in cases where the public interest in the investigation is very compelling, and in such cases the investigation should be conducted on the narrowest possible grounds.   Going after whistleblowers who have provided valuable information to the press (and hence the public) does not strike me as a particularly compelling public purpose, and on its face the investigation in this case strikes me as, at a minimum, overbroad.   This is an important story, and a probable abuse of executive power, even if the administration did nothing illegal.

UPDATE: I have more on this here.

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  1. Warren Terra says:

    It’s also interesting to consider this in conjunction with last weekend’s revelations about network-traffic-snooping at Bloomberg, which don’t seem to have attracted all that much commentary (possibly more in the finance press, which I don’t peruse). After all, snooping on peoples’ datastreams isn’t just a government thing.

  2. scott says:

    A lot of what advising clients boils down to is explaining to them that something may be legal but at the same time a craptastic idea that they’d regret.

  3. Alex says:

    The big thing with the AP phone records is that it points to a legislative fix. What the government did was legal and Congress (especially Republicans) have spent the past year or so demanding a massive investigation into the intelligence leaks. McCain, for example said “I can’t think of any time that I have seen such breaches of ongoing national security programs as has been the case here.”

    If the federal government was not supposed to use its powers while investigating the leaks, then it should not have those powers in the first place.

  4. oldster says:

    I love the hip-hop styling of

    “The First Amendment, it a floor”

  5. Anonymous says:

    Typical Libtard ™ behavior. Are you communists not upset that Obummer is spying on your local A & P store. Another story for the lamestream media to ignore.

  6. Njorl says:

    “Going after whistleblowers who have provided valuable information to the press (and hence the public) does not strike me as a particularly compelling public purpose, “

    Is this about whistleblowers? This is more about hornblowers. Someone leaked about a job well done when they shouldn’t have.

    • joe from Lowell says:

      Right.

      People are using the term “whistleblower” the same way Karl Rove did during the Valerie Plame investigation.

      Just because you divulge classified information doesn’t make you Daniel Ellsburg.

      • Jesse Levine says:

        “Whistleblower” has statutory and commonly accepted definitions. It doesn’t depend on whether you like the tune.

        • joe from Lowell says:

          Indeed.

          Which is why calling everyone who releases information they weren’t supposed to release a whistleblower is so mistaken.

          There isn’t even any wrongdoing alleged here. The so-called-whistleblower was apparently trying to toot his, and the government’s, horn. That’s not whistleblowing, any more than leaking Valerie Plame’s name.

          • joe from Lowell says:

            There isn’t even any wrongdoing alleged here.

            To clarify: the leaked information wasn’t even an allegation of wrongdoing. It was an allegation of awesome-doing. “Hey, look at us, we managed to get someone into al al Qaeda cell and nail ‘em!”

        • Hogan says:

          It’s not whistleblowing if you’re trying to make your target look good.

          • joe from Lowell says:

            Or merely make your political opponents look bad.

            This remains true even when you define your political opponents as “the United States of America.”

  7. This is an important story, and a probable abuse of executive power, even if the administration did nothing illegal.

    Wait wait wait! That doesn’t sound like something an “Obummer apologist” would say. What’s going on here? Aren’t we all s’posed to be gathering around “Dear Leader” and saying how it’s all fine and good and no big deal? If we keep this up we’ll never get our Soros check this month.

    • Ed says:

      What’s going on here? Aren’t we all s’posed to be gathering around “Dear Leader” and saying how it’s all fine and good and no big deal?

      I wonder why anyone would expect that…..

      • joe from Lowell says:

        “People around here” suspect an unseemly plot to run cover for the administration whenever their bowl of Alphabits contains too many Os.

        Hell, they suspect that when their Cheerios contain too many Os.

  8. Joshua says:

    I really doubt there is much institutional desire to change the legal structure that led to this. I imagine that President Rubio would be quite willing to engage in the same behavior.

    • Mean Mister Mustard says:

      Going after whistleblowers who have provided valuable information to the press (and hence the public) does not strike me as a particularly compelling public purpose

      Comment disappeared.

      Whistleblowers and leakers were the linchpin of this op. Brennan was interviewed earlier this year and was absolved. Then came the nomination. No coincidences, here.

  9. Mean Mister Mustard says:

    Going after whistleblowers who have provided valuable information to the press (and hence the public) does not strike me as a particularly compelling public purpose

    Leakers and Whistleblowers seem to exist on a rung below child molesters.

    I disagree with the Muddle. They say the IRS kerflabble is worse than the AP sotry because evahthang was LEGAL. T he consequences for this ham-handed exercise in authoritative bona fides will result in fewer talking heads arising. Sources will dry up; reporters will become even more cautious; the public trust tanks even further down the pipe.

    So it was a successful op, and therefore a feature and not a bug.

  10. DrDick says:

    While I do not think this is a good thing for the government to be doing, it is not illegal and the GOP hypocrisy, given Bush’s clearly illegal activities of this sort, is world class. This is especially true since the House GOP voted down a bill that would have outlawed it.

  11. Steve S. says:

    “There are good reasons to spy on the activities of journalists only in cases where the public interest in the investigation is very compelling”

    Holder speaking right now. Paraphrasing, (1) I was recused from this investigation, (2) the investigated leak was very, very bad, maybe the worst leak in the history of leaks, (3) take my word for it.

    Not much to root for nowadays, is there?

    • Keaaukane says:

      What does it mean when the AG “recuses” himself? He is still in charge and responsible for all that goes on within his domain.

      Did MacArthur recuse himself at Corregidor?

      • joe from Lowell says:

        What does it mean when the AG “recuses” himself?

        In this case, the Attorney General has to sign off on the subpoena if they are getting information about a media outlet’s phone call patterns using this law, and apparently, Holder left that decision to a deputy.

        • Keaaukane says:

          That’s leadership that leads. Did he say why he recused himself? Lawyers recuse themselves when they have a conflict, not just when they fear something will blow up in their face later.

          • joe from Lowell says:

            So without knowing anything about why Holder recused himself, you’re just going to assume the reason was illegitimate.

            And you’re going to assume that Eric Holder is just askeered of bad press. Sure, that’s fair. That’s so in keeping with his record.

          • Anonymous says:

            Holder is a potential source for the leak. He can’t be in a position to obstruct the investigation.

  12. Another Anonymous says:

    If only Bush & Cheney had waterboarded a few AP reporters!

  13. David Kaib says:

    Given, as Scott says, we don’t know all the details, it’s not clear why people are so convinced this was legal.

    • Random says:

      Well there’s the original AP story, which involves them potentially revealing the identities of overseas undercover CIA agents operating in the most dangerous circumstances imaginable (infiltrating al-Qaeda) and (by the AP’s own account) successfully intercepting an actual physical bomb that would have killed a hundred or two innocent civilians had it gotten aboard the aircraft.

      Just revealing an unactivated NOC in the domestic US was justification enough for putting a woman in prison for a year or so until ‘the aspens changed’ not too long ago.

      In this case it’s a few phone calls who’s origins were legally looked at. AP really screwed this up big-time and the next few weeks of walk-back are going to be entertaining.

  14. aimai says:

    I am so large with not caring about the AP–where was all this outrage over the outing of Valerie Plame? I don’t even mean that as a joke I mean: where have the major media players been for the last ten years as all our rights not to be spied on have been eroded–all our rights not to be manipulated by the government through false leaks have been attacked? If the AP or any other major news organization had beaten the drum against governmental spying or, for example, reported honestly in this country on Murdoch’s spying on ordinary citizens, I’d be more inclined to weep. But if you failed to prevent the Republican House and the Obama Administration from giving the DOJ vast and unsecured rights to spy on citizens and the press then don’t be all drawing your skirts back and shrieking about how unfair it is that it is applied to the AP.

    • Mean Mister Mustard says:

      don’t be all drawing your skirts back and shrieking about how unfair it is that it is applied to the AP.

      No one is crying about just the AP. Your point about Valerie Plame is well taken, but the idea that this helps make our watchdogs better at 72-point headlines is made of fishwrap. The entire op was to find a leaker, and the earnest citizens of the 4th Estate will be bereft of sources willing to have their heads removed. It makes the Press even more reticent to cover stories of import.

      And the Public….well it’s just another chink in the armor of trust. But it’s not the fault of Obots.

      • Kathleen says:

        Who in the “mainstream” press is committing real journalism anyway? I think it’s funny that after functioning as a mouthpiece and stenographer for power (or, excuse me, Republican power because that is the only “real”, legitimate power) the AP is screaming about the “journalizm’s freedumz” and their ability to report “real newzes” being jeopardized. (OK, I do know there are some reporters who really are doing excellent work, but they are few and far between I’m just feeling pretty ranty today with the MediaWhore-gasms de jour).

        • Mean Mister Mustard says:

          Funny, that’s the same complaint of the reichwing. It may be the strategy.

          If no one is happy, it must be good reporting responsible.

      • joe from Lowell says:

        It makes the Press even more reticent to cover stories of import.

        That’s not the problem; the press won’t suffer any consequences. The problem is that people will be more reticent to talk to the press – which would be fine if it was limited to government officers leaking classified information they were sworn keep secret, in an effort to toot their own horns, but the very breadth of the info request (all of the phone traffic on 20 different phone lines at the Associated Press) means that a whole lot of other sources on other kinds of stories, who may have had other, more legitimate reasons for not wanting to be known, have had caught up in this.

        • Mean Mister Mustard says:

          The problem is that people will be more reticent to talk to the press

          Indeed. And isn’t this the best case scenario for keeping secrets, secret?

          It seems the whole op was engineered to create a chilling effect on whistleblowers and leakers? If they didn’t find the leaker (Brennan) it’s still a Win/Win.

          • joe from Lowell says:

            I think you might be looking at a side effect and assuming it to be the motivation.

            The horses-not-zebras explanation of the U.S. Attorney’s motive is that he was trying to catch someone who divulged classified information. I understand that that sort of thing is frowned upon in certain quarters.

            • Mean Mister Mustard says:

              You are talking about one specific instance. There is an over-arching strategy to shut everyone the fuck up. Is that not apparent?

              • joe from Lowell says:

                It is apparent that the government is trying to prevent people from leaking classified information.

                It is also apparent that there is a concerted effort to bootstrap that rather uncontroversial goal into some horrific assault on freedom.

                For instance, by using Karl Rove’s Plame-era definition of “whistleblower” in every discussion of leak investigations.

                • Mean Mister Mustard says:

                  ‘Classified’ includes the WH lunch menu, I presume?

                  That’s the problem. Leaking matters which reflect well, is not a problem. Amirite?

                • joe from Lowell says:

                  Leaking matters which reflect well, is not a problem. Amirite?

                  Uhhhhh…are you following this story at all?

                  This is all about leaking information that reflects well. This is about leaking information about how effectively they managed to infiltrate an al Qaeda cell and disrupt a terrorist plot.

                • Mean Mister Mustard says:

                  @ 4:52

                  It was an op to find the leaker…..http://www.emptywheel.net/2013/05/14/ap-response-to-doj-reveals-they-couldnt-have-leaked-most-damaging-info-brennan-exposed/

                  As a result of the news leaks, however, U.S. and allied officials told Reuters that they were forced to end an operation which they hoped could have continued for weeks or longer.

                  Several days after the first leaks, counter-terrorism sources confirmed to Reuters that a central role in the operation had been played by MI-5 and MI-6, Britain’s ultra-secretive domestic and foreign intelligence services, whose relationship with their American counterparts has been periodically strained by concern about leaks.

                  These sources acknowledged that British authorities were deeply distressed that anything at all had leaked out about the operation.

                  The White House places the blame squarely on AP, calling the claim that Brennan contributed to a leak “ridiculous.”

                  Then, this….http://www.emptywheel.net/2013/05/14/ap-response-to-doj-reveals-they-couldnt-have-leaked-most-damaging-info-brennan-exposed/

                • joe from Lowell says:

                  Yes, the leaker who leaked information that reflected well on the government.

                  They engaged in a huge investigation to find out who leaked information that made them look like a highly-effective disruptor of terrorist attacks.

                  That doesn’t exactly support the contention that “Leaking matters which reflect well, is not a problem.”

                • Mean Mister Mustard says:

                  Holy Shite ! What does it take for a Win/Win strategy on keeping the lid on inconvenient truths to penetrate Obotic mindset?

                • joe from Lowell says:

                  Would you like some cheese with that whine?

                  Every fact you’ve claimed has been proven false. Your entire story makes no sense. Your basic characterization of what happened is bullshit.

                  You know what might “penetrate?” Not being completely, demonstrably wrong in every single thing you say.

                  Sorry if that’s too “Obot” for you.

                • Mean Mister Mustard says:

                  You know what might “penetrate?” Not being completely, demonstrably wrong in every single thing you say.

                  Firstly, the only bone of semantic contention is my/your notion of
                  what constitutes leaking information that reflects well which you sectored into the beneficial to joe from Lowell mode, which was an off-hand comment I made, which makes you seemingly evasive in the big pic.

                  That makes your argument a little weaker, amirite?

                  The overarching point (assuming you’e lacked the apparent context from my previous comments) is the convenient nature of having it both ways. BTIM, he wins by intimidating with concrete examples, the media sources most vulnerable to such an equation. And he wins by adhering to the LAW, whilst pilfering our remaining civil liberties

                  Sorry if that’s too “Obot” for you.

                  Is that a derogation, or a red badge of courage?

                • joe from Lowell says:

                  I can’t tell if you are “rite” because your word salad ceased to make any sense whatsoever.

                  Beyond “joe bad,” I can’t make heads or tails of what you are saying.

                  Please don’t interpret this as a request to clarify. Instead, you should just stop digging.

                  The overarching point (assuming you’e lacked the apparent context from my previous comments) is the convenient nature of having it both ways. BTIM, he wins by intimidating with concrete examples, the media sources most vulnerable to such an equation. And he wins by adhering to the LAW, whilst pilfering our remaining civil liberties

                  What a wonderful glimpse into your mind. “This story doesn’t show them doing anything wrong, those bastards.”

                  Seek help.

              • Mean Mister Mustard says:

                You must be an engineer.

            • Random says:

              In this particular instance the ‘classified information’ was the ‘identity of CIA assets responsible for infiltrating AQAP and successfully intercepting bomb plots.’

              And the response was ‘getting a subpoena from a judge and then notifying the individuals of the fact’.

              Valerie Plame was never in danger of being tortured to death and her corpse left in a ditch, but the fine folks over at Empty Wheel reveled in the year-long actual imprisonment of a journalist for around a year in that case.

              Watching AP walk this back over the next few weeks is going to be rich.

              • Mike D. says:

                No judge here, at least before the pen registry was placed – that’s the issue. Which isn’t dispositive as to legality or substantive justification, hence all the confusion. But they didn’t go to a judge.

          • gocart mozart says:

            A “whistleblowers” is someone who exposes wrongdoing. This leaker was exposing an undercover anti-terrorism operation.

            • joe from Lowell says:

              Remember when those awesome “whistleblowers” leaked the diplomatic cables that blew the lid off John Kerry’s opinion that the Syrian government was moving towards a peace deal with Israel?

              That was like the Pentagon Paper on steroids.

    • LittlePig says:

      where was all this outrage over the outing of Valerie Plame?

      I’m guessing about the same place it will be when Crash McCain and Huckleberry Graham out a CIA agent over the Bengazi business.

  15. wengler says:

    I thought the AP was protected from this sort of thing by their constant fellating of power.

    This week must be dump on Obama week. I wonder if he was about to announce a policy position unfavorable to the corporate elite.

    • Mean Mister Mustard says:

      I wonder if he was about to announce a policy position unfavorable to the corporate elite.

      Or, the existence of unicorns

    • Random says:

      I wonder if he was about to announce a policy position unfavorable to the corporate elite.

      The conservative-aligned AP has been touting emails for months now that supposedly came from State. Well today it was confirmed that those emails were Breitbartian artifacts that had been fraudulently doctored and the AP’s reporting on the matter has been about as honest and accurate as their reporting on all things both before and during Iraq.

      They’ve already lied about this issue (claiming they were ‘secretly’ monitored when in fact they were issued a subpoena. If only the administration had painted a few schools or toppled a statue, AP would have been right there to praise them to the heavens.

    • gocart mozart says:

      The AP blew it, but they didn’t blow the right guy.

  16. joe from Lowell says:

    Just right, Scott. There probably isn’t a Fourth Amendment violation – they collected “outside of the envelope” information, not “contents of the envelope” information – but the chilling effect on the press raises a serious First Amendment issue.

    Imagine if the local police were sitting outside the building where the Democratic Town Committee was meeting and writing down license plates of everyone who went in, on the grounds that they had solid evidence that the guy who robbed a bank two days was a member of the Democratic Town Committee. No, it’s not unconstitutional for the police to write down license plate numbers. Nonetheless, the problem is obvious.

    • gocart mozart says:

      What if they had a warrant based on probable cause to do so? What if it was a biker club? Cops have probably done similar things many times. The only thing that makes it seem outrageous is the Dem Town Committee angle and implied “going after political opponents” In this case, I don’t think they were going after the press but rather the leeker and as others have said, the “press”* doesn’t have greater constitutional rights than anyone else.

      *Hey, I have a blog, am I the “press” also.

      • joe from Lowell says:

        A warrant would have been great. A warrant would have imposed enforceable limits and provided oversight by an outside party.

        “The press,” defined as a group of people, don’t have heightened constitutional protection, but the act of engaging in journalism sure does under the First Amendment. My concern here is that the AP, which does on occasion engage in journalism, will be less able to do so, owing to the chilling effect on sources.

        • gocart mozart says:

          Thanks for the reply Joe and you make fair points. A warrant has a higher standard of proof but I still don’t know the particulars of why one and not the other. A subpoena involves an ongoing court case (is there one?) which can be challenged with a motion to quash the subpoena. Just curious about the minutia of this.

        • Random says:

          This is one of the instances where I can’t help but endorse the ‘chilling effect on sources’ as the only ethical thing for the administration to do.

          You asked these people to infiltrate al-Qaeda. In Yemen. And they succeeded.

          It’s hard to see how you don’t have an ethical obligation to protect their identities and pursue leaks of their operations using the powers legally available to you.

          People who openly serve in the armed forces in Afghanistan are lacking in intestinal fortitude by comparison to these folks. They actually get to carry weapons and wear body armor.

          • gocart mozart says:

            Exactly, if the situations were reversed, the screams of “why do you love the terrorists” would be deafening.

          • joe from Lowell says:

            You’re absolutely right about the “chilling effect” on people who would blow the cover of covert assets. Isn’t it funny how the uber-purist lefties, who aren’t horrible partisans like me, knew this during the Valerie Plame investigation, but managed to forget it in this case?

            People who would be chilled from doing that can go fuck themselves. I’m looking at you, Assange. You too, Manning.

            My concern is that the breadth of the request and the information gathered is going to chill a lot more than that.

  17. gocart mozart says:

    I think this tweet by Ryan Lizza sums it up perfectly

    Recap: GOP calls on Holder to investigate leaks. Holder appoints US Attorney. US Att. subpoenas AP records. GOP calls on Holder to resign.

  18. joe from Lowell says:

    DoJ’s response to AP’s letter.

    “Indeed, although the records do span two months, as we indicated to you last week, they cover only a portion of that two-month period. In addition, these records have been closely held and reviewed solely for the purpose of this ongoing criminal investigation. The records have not been and will not be provided for use in any other investigations.”

    If that’s the case, that’s great, but this is just James M. Cole’s word. I have no particular reason to think that James M. Cole is lying here, but there is supposed to be some check-and-balance oversight of prosecutors and investigators to make sure they don’t go beyond such limits.

  19. gocart mozart says:

    Question for anyone, Why a subpoena and not a search warrant?

    • joe from Lowell says:

      Because they can.

      The Electronic Communications Privacy Act authorizes the government to subpoena phone records (not the content of phone calls, but who-called-whom-when-and-for-how-long) from the phone companies without a court order.

      Data can be obtained on traffic and calling patterns of an individual or group without a warrant, allowing an agency to gain valuable intelligence and possibly invade privacy without any scrutiny, because the actual content of the communication is left untouched.

  20. Bitter Scribe says:

    Alberto Gonzales thought this was a good idea. That’s all I need to know.

    • gocart mozart says:

      I think he is implying that it is a good idea if he had done it but not necessarily any one else.

      It was a fucking subpoena! Either comply with it or challenge it in court. See, Subpoena, Quash It

  21. Random says:

    I know I already said this but I want to reiterate that I take great exception to the notion that it’s unethical to subpoena journalists who risk exposing CIA operatives in foreign lands who you asked to infiltrate terrorist groups overseas.

    The exact opposite is true. If captured after being exposed, these individuals are guaranteed to be violently tortured and then killed. In gratitude for suffering that fate, our nation will not give them a medal, or put their name on a wall, or bury them in Arlington cemetery, or tell their families that they died in service to their country, or give them a 21-gun salute.

    The least you could do is check on the phone records of the people who threatened these agents’ lives and, omg, notify those journalists by letter of the fact that you checked their phone records. It’s not like any of them were going to be prosecuted.

    • Another Halocene Human says:

      I agree with you, fwiw. It seems like everybody is damaged from years of encroaching overreach and is jumping at spiders.

      What the leaker–with AP’s assistance–did is unconscionable. The GOP is on overdrive trying to confuse everyone in a desperate attempt to make a Dem President look bad. And the AP? Has been on life support for a while now. They should be happy to get so much publicity. Congratulations, you’re the Bob Novak of newswires.

  22. joe from Lowell says:

    Scott,

    Going after whistleblowers who have provided valuable information to the press (and hence the public)

    What part of this story is supposed to involve a whistle blower?

    What wrongdoing was uncovered?

    You seem to be using Karl Rove’s Plame-era definition of the term – someone who leaks classified information for no legitimate public purpose, but to promote the image of the administration.

    Where was your objection to going after such “whistle blowers” when they “provided” very similar “valuable public information to the press” during that episode?

  23. Ebon Talifarro

    On the AP Spying – Lawyers, Guns & Money : Lawyers, Guns & Money

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