Under fire for the Justice Department’s surveillance of AP reporters’ phone records, the White House is pushing to revive a “media shield” bill to protect reporters who refuse to identify confidential sources. Sen. Chuck Schumer (D-NY) received a call Wednesday from the White House asking him to reintroduce his 2009 bill.

The last media shield bill was thwarted when Wikileaks exposed thousands of pages of secret government documents, killing the political will to bring the legislation to a floor vote. Even before that, however, the Obama administration refused to support Schumer’s legislation unless it excluded reporters who publish leaks deemed to cause “significant harm” to national security.

Though the administration’s renewed interest in the media shield could signal regret over the AP scandal, the compromise bill may not have protected the AP from the DOJ’s subpoena because of this exception for national security leaks. However, Schumer argued the legislation would have made a difference:

In a statement, Mr. Schumer referred to the A.P. subpoena: “This kind of law would balance national security needs against the public’s right to the free flow of information. At minimum, our bill would have ensured a fairer, more deliberate process in this case.”

It is not clear whether such a law would have changed the outcome of the subpoena to The A.P. But it might have reduced the chances that the Justice Department would have demanded the records in secret, without any advance notice to the news organization, and it may have allowed a judge to review whether the scope of the request was justified by the facts.

As the New York Times notes, the media shield compromise language would actually help the government pursue reporters to root out leaks of classified information — “Judges could not quash a subpoena through a balancing test if prosecutors could show that the information sought might help prevent a future terrorist attack or other acts likely to harm national security.”

The bill would, however, protect journalists from civil suits attempting to force them to give up sources or information. It would also require the information seekers to prove why their need trumps the need for unfettered media.

(Credit: AP)

GOWDY: Greta, you were an attorney. There are lots of privileges — husband-wife, priest-penitent, attorney-client, none of them unqualified. So when you have a major national security leak, which is a compelling issue, and you juxtapose that with the right of the media to do its job and provide oversight, there’s a conflict. And there’s no federal statute on point. But the Supreme Court has said if there is a compelling interest, which there certainly is in national security cases, and the information is relevant which it has to be to justify a subpoena, and you have no alternative means of getting the information, then the Department of Justice had no choice. . . .

Think back a year ago. We had the attorney general and other Department of Justice employees, and we grilled them over national security leaks. And here they are doing what we asked them to do, investigate the leak.

While Gowdy’s admission that Republicans supported a probe into national security leaks like the one that led to the DOJ probe of AP is welcome, his willingness to largely excuse DOJ’s actions does not bode well for reform. When journalists face surveillance by law enforcement, many sources will be too frightened to talk to reporters, and that will lead to the public being less informed. The AP probe presents a strong argument for requiring law enforcement to obtain a warrant from a judge before they can obtain phone records from journalists — indeed, DOJ itself should support such a requirement, because a judicially issued warrant enables them to resist scandal after their investigations become public — but such a reform will almost certainly require an act of Congress.

Although there were initial signs that congressional Republican lawmakers would react to the DOJ probe with their typical degree of outrage, many GOP lawmakers are now responding with a collective “meh.” Sen. John Cornyn (R-TX), the second highest ranking member of the Republican caucus, said that he has “questions” about the AP surveillance, “but I’m wiling to wait and see how this plays out, whether it was narrowly targeted or whether it was a net that was too broadly cast.” Sen. John McCain (R-AZ) similarly offered up an uncharacteristic willingness to wait “before offering an opinion.”

Of course, there are still lawmakers, both Democrats and Republicans, who remain bothered by the probe. But the chances of reform now seem low.

U.S. Attorney General Eric Holder

Attorney General Eric Holder told reporters on Tuesday that he recused himself early on in the Department of Justice’s investigation of the Associated Press and possible national security leaks.

Holder was speaking at what was meant to be a Health and Human Services announcement of stricter rules on going after Medicare fraud. Instead, Holder found himself answering a slew of questions related to the DOJ’s subpoena of multiple phone records belonging to the AP. In sum, twenty phone lines were pulled, including the home phone numbers of several reporters. Asked about his role in the matter, Holder told the assembled crowd that he had recused himself early on “to avoid a potential conflict of interest” as the FBI had previously interviewed him in relation to the case.

Holder also identified Deputy Attorney General James M. Cole as the Justice Department official who originally signed off on the subpoena of AP’s phone records, in conjunction with the U.S. Attorney in Washington, DC. Holder referred several questions about the investigation to a letter the Deputy Attorney General sent to AP in response to the scathing letter the wire agency released yesterday. In the letter, Cole sought to reassure the AP that their records “have not and will not be provided for use in any other investigations.” However, the Justice Department will not return the records to the AP as requested.

The Attorney General insisted that he was a strong advocate of protecting the First Amendment rights of the press, saying that sweeping, overbroad subpoenas are not a matter of administration policy:

HOLDER: That is certainly not the policy of this administration. If you will remember in 2009 when I was — my confirmation hearings, I testified in favor of a reporter shield law. We as an administration took a position in favor of such a law. It didn’t get the necessary support up on the Hill. It’s something this administration still thinks would be appropriate. We have investigated cases on the basis of the facts. Not as a result of a policy to get the press or to do anything of that nature. The facts and the law have dictated our actions in that regard.

While refusing to say exactly what was leaked to prompt the investigation into the AP, Holder lent credence to the idea that it was national security related, calling the subject matter a “very, very serious leak.” The lead “put the American people at risk,” Holder said. “That is not hyperbole. It put the American people at risk.” The Associated Press in 2009 published a story on a foiled terrorist plot in Yemen, which gave details related to a double agent planted among Al Qaeda in the Arabian Peninsula, and is likely the cause of the investigation.

“I’m proud of what we have done,” Holder said of the administration’s civil rights policies on the whole. “We have been, I think, very aggressive in our enforcement of the civil rights laws.” Despite that pride, the administration has been forced to confront a slew of troubling civil liberties issues in the recent weeks, including the use of actions deemed torture at Guantanamo Bay, the ongoing targeted killing program, the IRS possibly improperly targeting conservative groups, and now the possible curtailing of the free press.

(Credit: AP)

Yesterday, the Associated Press reported that phone records from nearly two dozen phone lines were obtained by the Department of Justice as part of what was likely an investigation into how AP reporters discovered the CIA’s involvement in foiling an Al Qaeda related bomb plot. As Hayes Brown explained yesterday, this investigation probably was motivated by concerns that reporting on CIA’s involvement could have compromised an intelligence operative working within Al Qaeda in the Arabian Peninsula.

Lawmakers on both sides of the aisle have expressed concerns over DOJ’s actions here, potentially providing a rare opportunity to enact law restricting government surveillance. Moreover, there are strong arguments for why DOJ should be required to obtain a warrant from a judge before obtaining journalists’ phone records, especially in a case such as this one where DOJ’s need for the information does not appear to be imminent, the information sought is particularly broad, and the records are likely to remain available even after a delay.

Yet, if change is going to happen, it will likely have to come from what is currently the most dysfunctional branch of government — Congress — rather than the one that is currently most capable of bold action — the judiciary. Ultimately, this incident is likely to be a test of whether Congressional Democrats who opposed expansive surveillance during the Bush Administration will also have qualms with DOJ’s actions now that one of their own is in the White House; and whether Republicans, many of whom had a very different view of media surveillance just a year ago, will be able to pause their political posturing to pass a law preventing similar incidents from occurring in the future.

While the full details of the investigation have not been revealed — AP’s reporting on the surveillance was based largely on a letter DOJ sent to AP informing them of the surveillance — it is unlikely that DOJ’s actions violate the Constitution as it has been interpreted by the Supreme Court. No evidence has emerged that DOJ obtained the contents of actual conversations by AP reporters. Rather, their investigation appears to be limited to discovering which numbers were dialed by AP employees subject to surveillance, and possibly a similar investigation of their incoming calls.

Under the Supreme Court’s 1979 decision in Smith v. Maryland, the Constitution’s ban on unreasonable searches and seizures simply do not apply to this kind of surveillance. According to the five justices who joined the majority opinion, individuals do not have a “reasonable expectation of privacy” in the numbers they dial on their phones because “[t]elephone users . . . typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes.” When information is voluntarily disclosed to a third party, the Court explained the person disclosing the information “assumed the risk that the information would be divulged to police.”

The best argument for applying a different rule to the AP is that journalists are different from other phone users. Journalists often depend on sources who will refuse to speak to a reporter if their conversation is not kept confidential. If government can discover who reporters have been speaking to, they will chill sources from providing information to journalists, and the public will ultimately be less well informed about the information they need to participate in a democracy. Most significantly, the First Amendment explicitly protects “the freedom of. . . the press,” so a strong textual argument can be made that activities that are essential to journalism enjoy heightened protection under the Constitution.

This argument, however, is unlikely to be embraced by our current Supreme Court. In Citizens United, the conservative justices did not just authorize corporations to spend unlimited money to influence elections, they also dismissed the idea that “the institutional press has any constitutional privilege beyond that of other speakers.” At least until one of these five justices leaves the bench, a robust interpretation of the First Amendment’s freedom of the press is unlikely.

The Constitution isn’t the beginning and the end of American law, and Justice Department regulations do place some significant restrictions on federal law enforcement’s ability to subpoena telephone records from journalists. Beyond requiring the surveillance of AP to eventually be disclosed to AP, they also typically require actions targeting journalists to be personally approved by the Attorney General. What they do not require, however, is for DOJ investigators to obtain a warrant before they conduct the surveillance at issue here. Placing this decision in the hands of the Attorney General is not nothing — the sheer volume of Eric Holder’s workload prevents him from personally reviewing and approving very many things — but it is also not an independent check on DOJ’s ability to target journalists.

At the moment, there appear to be a bipartisan consensus forming that the current checks on DOJ surveillance are not enough — at least in the media context. The question is whether Congress will actually decide to do something about it, or whether they will default to partisan posturing and reliance on a Supreme Court that shows little interest in protecting journalism.

Attorney General Eric Holder

Last year, the Associated Press reported that an Al Qaeda in the Arabian Peninsula (AQAP) plot had been foiled, thanks to a timely intervention on the part of the United States. The plan, according to the AP’s March 2012 story, involved an upgrade of the “underwear bomb” used in the failed Christmas Day 2009 bomb plot that was meant to take down a passenger airplane in Detroit, MI.

Why that drew the attention of the Justice Department, however, is that the CIA was the one who foiled the plot, which the AP report made clear:

The FBI is examining the latest bomb to see whether it could have passed through airport security and brought down an airplane, officials said. They said the device did not contain metal, meaning it probably could have passed through an airport metal detector. But it was not clear whether new body scanners used in many airports would have detected it.

The would-be suicide bomber, based in Yemen, had not yet picked a target or bought a plane ticket when the CIA stepped in and seized the bomb, officials said. It’s not immediately clear what happened to the alleged bomber.

AP learned of the plot a week before publishing, but “agreed to White House and CIA requests not to publish it immediately” due to national security concerns. But, by reporting the CIA’s involvement in foiling the plot, they put AQAP on notice that the CIA had a window into their activities. The AP’s reporting also led to other stories involving an operative in place within AQAP, and details of the operations he was involved in. That operative, it was feared, would be exposed and targeted by AQAP as retribution for siding with the United States.

John Brennan, who is now the head of the CIA, said at his confirmation hearing that the release of information to AP was an “unauthorized and dangerous disclosure of classified information.” That the Department of Justice would be pursuing information on these leaks is also not new, given Attorney General Eric Holder’s appointment of federal prosecutors to look into the disclosures last year. What is surprising is the large amount of information the Justice Department seems to have acquired in its pursuit:

In all, the government seized those records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown but more than 100 journalists work in the offices whose phone records were targeted on a wide array of stories about government and other matters.

The Associated Press released its letter to Holder denouncing the invasion of their records without their consent, calling it an “unprecedented step” and “a serious interference with AP’s constitutional rights to gather and report the news.”

In a statement on the case, the U.S. Attorney’s D.C. office claimed that “because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the free flow of information and the public interest” in carrying out those laws. Despite that, this investigation appears unusually broad. And the full extent of the Department of Justice investigation, and whether other news outlets were targeted in the course of their inquiries, remains unclear.