This is the second installment of a three-part series comprised of selected reports on “…the growing scandal over the Justice Department’s seizure of telephone records from Associated Press editors and reporters. The action came as part of a probe into the leaks behind an AP story about how U.S. intelligence thwarted a Yemen-based al-Qaeda bombing plot on a U.S.-bound airplane.” (Note: Quoted from the Democracy Now! report, in Part I of this series.)
Here are the LINKS to Part I (again) and Part III (link to be inserted when it’s published on Sunday, along with a few new and quite salient facts about this story which have not been covered by the MSM, to date).
Yesterday, the NY Times’ Margaret Sullivan published a fairly even-handed summary (with links) of eight of the more “noteworthy pieces” she’s read over at the Times’ Public Editor’s blog. I’ve taken the liberty of expanding upon it, herein.
I heartily encourage those reading this to provide additional links in their comments, down below. (This is a complex story. Giving it short shrift and reacting in a hyperpartisan, and/or shoot-from-the-hip manner really doesn't do the subject justice, IMHO.)
For Extra Credit: A Little Light Reading on Press Rights
By MARGARET SULLIVAN
NY Times Public Editor Blog
May 17, 2013, 9:02 am
With press rights very much in the news this week, here are some of the most noteworthy pieces I’ve come across on the subject:
1. Molly Redden of The New Republic writes that there really is a chilling effect on journalism from the Justice Department’s leak investigations, quoting the investigative journalist Jane Mayer: “It’s a huge impediment to reporting, and so ‘chilling’ isn’t quite strong enough. It’s more like freezing the whole process into a standstill.”…
Is the 'Chilling Effect' Real? National-security reporters on the impact of federal scrutiny
BY MOLLY REDDEN
The New Republic
May 15, 2013
Since news broke Monday that the Justice Department had secretly accessed the phone records of Associated Press reporters and editors over a two-month period—likely as a result of its anonymously sourced story on a foiled al Qaeda plot to blow up a U.S.-bound plane—no watchwords have gotten more exercise than “chilling effect.” A bevy of lawmakers, such as Sen. Mark Udall, of the Select Committee on Intelligence, and Sen. Richard Blumenthal, of the Judiciary Committee, have invoked the phrase in calling for the DOJ to justify its actions, while pundits have used it to denounce the same actions as unconscionable: “Not only is it chilling, it is stupid,” the National Journal’s Ron Fournier told the hosts of MSNBC's “Morning Joe.”
The AP’s own story on the probe paraphrases an ACLU lawyer saying that journalists may be cowed out of chasing down national security leads in the face of government scrutiny. But does federal overbearance really have a “chilling effect”?
Apparently so. New York Times reporter Eric Lichtblau told me in an email that, after writing a Pulitzer Prize–winning series of stories with James Risen that revealed major clandestine counterterrorism programs under Bush, like warrantless wiretaps, “I heard from various news sources that the FBI had been monitoring my phone and Internet communications with certain people as part of its leak investigation into our NSA story.” Nearly every national security reporter reached Tuesday had a similar story to tell, as do plenty of their peers…
2. David A. Kaplan of Fortune Magazine, who teaches First Amendment law at New York University, says the press should stop whining: “From the government’s perspective, lawlessness is a bad thing, and disclosure of secrets can endanger security. When the Justice Department, legally (so far as we know), wants to obtain evidence to prove law-breaking, it seems to me the press is entitled to no special protection.”
AP-Justice Dept. fallout: The press should quit its bellyaching
By David A. Kaplan
May 15, 2013: 1:29 PM ET
Good journalism can act as a brake on excess. But that doesn't mean government is supposed to be a willing participant in the violation of its own laws.
FORTUNE -- Since when did the press become exempt from the normal (and, yes, sometimes excessive) reaches of government? I just checked the First Amendment -- it's a really quick read -- and I can't find anything indicating immunity for journalists from investigatory techniques that apply to everybody else.
Press precincts are up in arms about the disclosure this week that the Justice Department secretly obtained two months of telephone records of reporters and editors at the Associated Press. "Obama's War on Journalists!" hollered Slate. While the government has yet to fully explain its actions, the surveillance clearly is related to an AP piece a year ago about a foiled terror plot. That story, citing unnamed sources, disclosed details about CIA actions in Yemen to thwart Al Qaeda plans to blow up a plane headed to the U.S. At a news conference yesterday, Attorney General Eric Holder described the AP article as among "the top two or three most serious leaks that I've ever seen," a leak that "put the American people at risk."
The federal government is notorious for invoking national security concerns when there aren't any. Forty years ago, the Nixon administration infamously, and unsuccessfully, went all the way to the U.S. Supreme Court to try to block the publication of the Pentagon Papers. More recently, the WikiLeaks saga hardly led to the collapse of American intelligence, despite prognostications otherwise. But the fact that the government exaggerates and dissembles hardly means it isn't entitled to try to enforce the laws of secrecy that it imposes on its public servants, just as the press is entitled to try to get those employees to talk confidentially for investigative stories. The press's agenda -- to get a good story and to get it ahead of the competition -- is no better or worse than the government's. I regard the exchange between source and journalist as essentially transactional -- each actor probably has something to gain, and neither actor is likely acting selflessly…
3. The former New York Times counsel James Goodale,
writing in The Daily Beast, compares President Obama’s record on press rights to that of President Richard Nixon and recalls that Mr. Obama “deep-sixed” the press shield law he is now proposing…
Is Obama Worse For Press Freedom Than Nixon?And, here’s Goodale over at Reuters (video) on Friday…
by James C. Goodale
The Daily Beast
May 14, 2013 12:11 PM EDT
James Goodale defended the New York Times during the Pentagon Papers. But Nixon had nothing on Obama, writes the First Amendment lawyer—and that’s bad news for freedom of the press.
President Barack H. Obama’s outrageous seizure of the Associated Press’s phone records, allegedly to discover sources of leaks, should surprise no one. Obama has relentlessly pursued leakers ever since he became president. He is fast becoming the worst national security press president ever, and it may not get any better.
It is believed that Obama’s Justice Department sought AP’s records to find the source of a leak that informed an AP story about a failed terrorist attack. What makes this action particularly egregious is that Justice didn’t tell AP what it was doing until two months after it obtained the records. This not only violates Justice Department guidelines for subpoenas of this sort, but also common sense, decency, and the First Amendment.
Under the guidelines, subpoenas concerning the press cannot be issued without the express approval of the Attorney General. Further, before a subpoena is issued, the government is honor bound to negotiate with the party to which it is directed…
Obama worse for press freedom than Nixon: Goodale (6:57)
May 17th, 2013
James Goodale, who represented the New York Times in the Pentagon Papers case, tells Reuters Global Editor-at-Large Sir Harold Evans that President Obama is fast becoming the worst president ever when it comes to defending freedom of the press. Goodale is the author of ''Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles.”…
4. Frank Rich of New York Magazine, formerly a Times columnist, calls the seizure of Associated Press phone records “the scandal with legs” for the president.
Frank Rich on the National Circus: The IRS, Benghazi, and the Republicans Who Cried Wolf
New York Magazine
May 15, 2013 12:50PM
The Justice Department informed the Associated Press last Friday that it had secretly seized phone records of reporters and editors, apparently to suss out the source of a leak on a CIA-foiled terrorism plot. This administration has indicted six current and former government officials on leak-related charges, far more than any previous administration. How much do you worry about a chilling effect on political and national-security reporting?
This is the scandal with legs. It is not the work of lower level bureaucrats and is entirely consistent with the Obama White House’s efforts to shut out, intimidate, and manipulate the press. I don’t think Eric Holder’s explanation adds up — any of it. It doesn’t make sense that he would have recused himself from the broad investigation of the AP; his explanations of why he did so (e.g., because he has “frequent contact with the media”) sound like dissembling. Holder’s claim that the AP story “put the American people at risk” is also suspect. I believe Gary Pruitt, the AP’s chief executive, when he says that his organization “held that story until the government assured us that the national security concerns had passed.” There’s nothing in Pruitt’s career or the AP’s past behavior to support the case that he would be making this up. So, yes, the Obama administration is and has been trying to chill reporters on national security and other areas. And, as we are seeing daily, its efforts at intimidation have done little to stop leaks. The sweeping assault on the AP’s phone lines demands a true investigation — not a dog-and-pony show by the Republican House.
5. Thomas Stackpole of Mother Jones, with information from the Knight Center for Journalism in the Americas, details the six indictments of government leakers during the Obama administration.
The Obama Administration Has a Long Record of Prosecuting LeakersStackpole then provides a brief summary regarding the following six indiividuals indicted by the Obama administration under the law: 1. Shamai K. Leibowitz, 2009; 2. Stephen Jin-Woo Kim, 2010; 3. Thomas Drake, 2010; 4. Pfc. Bradley Manning, 2010; 5. Jeffery Sterling, 2010; and, 6. John C. Kiriakou, 2012.
By Thomas Stackpole
Wed May. 15, 2013 10:17 AM PDT
The Associated Press announced on Monday that federal agents had secretly seized two months of its phone records in what the organization called a "serious interference with the A.P.’s constitutional rights to gather and report news." Although much of the resulting furor has focused on the rights of a free press, the sweeping move by the Department of Justice also highlights the Obama administration's rough treatment of leakers and whistleblowers within its ranks.
The Obama administration has used the 1917 Espionage Act, which was originally designed to prosecute spies, to indict twice as many government officials for leaks than all other administrations combined. The Knight Center for Journalism in the Americas has assembled a list of the six current and former government officials that the Obama administration has indicted under the law…
(NOTE: If you recognize the many names listed in the previous paragraph, that’s more than likely due to Daily Kos being fortunate enough to have Jesselyn Radack, one of our country’s leading experts—and, certainly, one of the leading advocates in America for whistleblowers’ rights--on this issue regularly contributing her work to this community.)
6. The New Yorker’s general counsel, Lynn Oberlander, analyzes the A.P. phone records case from a legal perspective: “Even beyond the outrageous and overreaching action against the journalists, this is a blatant attempt to avoid the oversight function of the courts.”
The Law Behind the A.P. Phone-Record Scandal
May 14, 2013
The cowardly move by the Justice Department to subpoena two months of the A.P.’s phone records, both of its office lines and of the home phones of individual reporters, is potentially a breach of the Justice Department’s own guidelines. Even more important, it prevented the A.P. from seeking a judicial review of the action. Some months ago, apparently, the government sent a subpoena (or subpoenas) for the records to the phone companies that serve those offices and individuals, and the companies provided the records without any notice to the A.P. If subpoenas had been served directly on the A.P. or its individual reporters, they would have had an opportunity to go to court to file a motion to quash the subpoenas. What would have happened in court is anybody’s guess—there is no federal shield law that would protect reporters from having to testify before a criminal grand jury—but the Justice Department avoided the issue altogether by not notifying the A.P. that it even wanted this information. Even beyond the outrageous and overreaching action against the journalists, this is a blatant attempt to avoid the oversight function of the courts.
It is not, again, as if the government didn’t have options. The D.C. Circuit (in a 2005 opinion upholding a finding of contempt against the Times’s Judith Miller and Time’s Matt Cooper for refusing to testify about who had disclosed Valerie Plame’s identity as a C.I.A. operative) has held that there isn’t a First Amendment privilege for journalists to refuse to testify before a criminal grand jury, as has the Second Circuit (in a 2006 case in which the government was trying to find out who told the Times about a planned raid on two foundations suspected of providing aid to terrorists). In the wake of the decisions, there was a renewed effort to pass a federal shield law—though the proposed law would not have provided absolute protection in cases of national security—but, with the rise of WikiLeaks, that discussion died…
7. Victor Davis Hanson of the Hoover Institution, writing for National Review Online, summarizes the recent troubles in the Obama administration: “ ‘Hope and change’ is fast becoming the 1973 Nixon White House.”
Obama’s Second-Term Embarrassments
“Hope and change” is looking more like the 1973 Nixon White House.
By Victor Davis Hanson
National Review Online
May 16, 2013 12:00 AM
… the Justice Department just announced that it had secretly seized the records of calls from at least 20 work and private phone lines belonging to editors and reporters at the Associated Press in efforts to stop suspected leaks. At about the same time as the Benghazi and IRS disclosures, it was learned that there was a strange relationship between the Obama White House and the very center of the American media — odd in a way that might explain the unusually favorable media coverage accorded this administration…
8. Glenn Greenwald of The Guardian writes about the media’s sudden interest in civil liberties, coming rather late in the troubled game, as he notes. In short, he writes, the issue is catching fire now because media organizations are now in the crosshairs: “It is remarkable how media reactions to civil liberties assaults are shaped almost entirely by who the victims are.”
The major sea change in media discussions of Obama and civil liberties
The controversies over the IRS and especially the AP phone records appear to have long-lasting effects
Wednesday 15 May 2013 10.45 EDT
Due to the controversies over the IRS and (especially) the DOJ's attack on AP's news gathering process, media outlets have suddenly decided 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. The first two paragraphs of this Washington Post article from yesterday, expressed in tones of recent epiphany, made me laugh audibly:"President Obama, a former constitutional law lecturer who came to office pledging renewed respect for civil liberties, is today running an administration at odds with his résumé and preelection promises.You don't say! The Washington Post's breaking news here is only about four years late. Back in mid-2010, ACLU executive director Anthony Romero, speaking about Obama's civil liberties record at a progressive conference, put it this way: "I'm disgusted with this president." In the spirit of optimism, one can adopt a "better-late-than-never" outlook regarding this newfound media awakening.
"The Justice Department's collection of journalists' phone records and the Internal Revenue Service's targeting of conservative groups have challenged Obama's credibility as a champion of civil liberties - and as a president who would heal the country from damage done by his predecessor."
As a result of the last week, there is an undeniable and quite substantial sea change in how the establishment media is thinking and speaking about Obama…