Lawyers, Guns, and Money has a pretty good take on it and get it mostly right:
"A lot of blogs are expressing outrage at the AP story reporting that the government collected logs of telephone numbers used by the AP. The AP’s story appears to have been written to get people upset. The first sentence of the AP report is not subtle: “The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a ‘massive and unprecedented intrusion’ into how news organizations gather the news.” Yikes, a secret investigation! And a massive and unprecedented intrusion! It sounds like quite the scandal."
"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?"
"I get that many people will want to use this story as a generic “DOJ abuse” story and not look too closely at it. And I also understand that those who think leaks are good things will see investigations of leaks as inherently bad. But at least based on what we know so far, I don’t yet see a strong case that collecting these records was an abuse of the investigative process."
"Then there was a great commentator in the comments section that pointed out that basically Obama would have been kiled by the GOP had he alerted the AP to the subpoenas before hand-as many seem to think the fact that this was done without AP's knowledge as being particularly egregious."
Here is Sequel 162:
"I agree with Kerr 100%. The core of this "story" is that AP wasn't notified of the subpoena ... something that happens under "normal circumstances". When the investigation involves White House leaks of classified info from a CIA investigation of a terrorist plot, how can any reasonable person label the circumstances "normal". It was totally appropriate for them not to be notified of this "secret" subpoena."
"Given the amount of pressure that Congress was laying on the President last year to get to the bottom of White House leaks, one can only imagine the outrage that would be coming from the Hill if the AP had been notified of the subpoena in advance. The right wing would have labelled it a plot to warn AP to destroy evidence."
"There is simply no story here ... merely story-mongering by a press obsessed with conspiracy theories."
- 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.
Points one and two, they nail it. On point three: maybe it doesn't mean he agrees with Orin Kerr, but that doesn't mean that I don't. The trouble is that as it's clear the GOP doesn't care a fig about the civil liberties of journalists-as their support for Bush's illegal wiretapping shows-it's not clear how an investigation led by them-led by the arch Witch Hunter Darrell Issa-is going to lead to better civil liberties for journalists. Actually Kerr makes some pretty good points too:
"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."
He also has some great fun with the website's readers:
"I get that many people will want to use this story as a generic “DOJ abuse” story and not look too closely at it. And I also understand that those who think leaks are good things will see investigations of leaks as inherently bad. But at least based on what we know so far, I don’t yet see a strong case that collecting these records was an abuse of the investigative process."
"Then there was a great commentator in the comments section that pointed out that basically Obama would have been kiled by the GOP had he alerted the AP to the subpoenas before hand-as many seem to think the fact that this was done without AP's knowledge as being particularly egregious."
Here is Sequel 162:
"I agree with Kerr 100%. The core of this "story" is that AP wasn't notified of the subpoena ... something that happens under "normal circumstances". When the investigation involves White House leaks of classified info from a CIA investigation of a terrorist plot, how can any reasonable person label the circumstances "normal". It was totally appropriate for them not to be notified of this "secret" subpoena."
"Given the amount of pressure that Congress was laying on the President last year to get to the bottom of White House leaks, one can only imagine the outrage that would be coming from the Hill if the AP had been notified of the subpoena in advance. The right wing would have labelled it a plot to warn AP to destroy evidence."
"There is simply no story here ... merely story-mongering by a press obsessed with conspiracy theories."
I think that between Lawyers, Guns, and Money, Kerr, and the commentator Sequel 162 we have the outlines of what this story really amounts to.
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