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U.S. Senator Lindsey Graham (R-SC) speaks to the press following his private meeting with United States U.N. Ambassador Susan Rice about the attack on U.S. diplomats in Benghazi, Libya, on Capitol Hill in Washington, November 27, 2012.   REUTERS/Jason Ree
Here's proof that not all flip-flopping is bad: Sen. Lindsey Graham, who opposed a media shield law in 2008, now says we need one—and says that his fellow Republicans change their mind too, now that Fox is a target:
Sen. Lindsey Graham is hopeful revelations that the government spied on Fox News reporter James Rosen will finally draw Republicans into the fight with the Obama administration over it’s targeting of journalists as part of the White House’s war against leaks, the South Carolina Republican told BuzzFeed Monday.

The Department of Justice has targeted at least two news organizations — Fox and the Associated Press — as part of Obama’s crackdown on executive branch leaks. Although Senate Majority Leader Harry Reid and some Democrats have expressed outrage so far, Senate Republicans have been timid in their response.

“Maybe now that Fox is involved, more [Republicans] will pay attention, but it didn’t make a difference to me,” Graham said.

Ironically, President Obama was a co-sponsor of the media shield law that Graham opposed. Despite the fact that his Justice Department has now snooped on both the AP and Fox, he still supports such a law, though in 2009, he opposed an effort to revive the bill that he'd cosponsored one year earlier. That puts him in a position of saying that there needs to be a media shield law to protect reporters from his administration, which seems sort of ridiculous—but also seems accurate.

Of course, with both Graham and Obama calling for a media shield law, you know there has to be a catch—and there is. Both men support a national security exception. Depending how broadly that exception is written, it could easily render a media shield law moot in virtually every case where it might be applicable.

Even if the law isn't worthless, there's still the question of whether it can get enough Republican support to pass. Despite Graham's optimism, there's scant evidence that Republicans are ready to make the leap. For example:

“As a former newspaper man, I’m totally outraged,” said Kansas Sen. Pat Roberts of the DOJ’s affidavit against Rosen. “We don’t need a shield law, the 1st amendment is the shield law.”
Actually, there does need to be a law. A judge approved the warrant on Rosen; the AP phone records subpoena was legal. You can say that the administration shouldn't have exercised its power, but the fact is that it already has. Unless there's a way to retroactively challenge what happened in court (and there might be—I'm not a lawyer), the options are to change the law or just hope that the executive branch restrains itself.

The only other Republican senator to release a statement was Marco Rubio, but his statement completely sidestepped the issue of a media shield and instead suggested that the administration was engaged in a witch hunt against political enemies. The facts, though, don't bear that out. Fox may be critical of Obama, but the Fox and AP leak investigations were actually demanded by Republicans as well as the administration.

Of all the so-called "scandals," this is the one case where it's clear there's something that needs to be fixed. Democrats, Republicans, and the White House need to decide whether they want to continue using fear to justify eroding civil liberties or whether it's time to start putting freedom first again.

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Comment Preferences

  •  Come again? (3+ / 0-)
    Recommended by:
    Korkenzieher, enhydra lutris, RUNDOWN
    Of all the so-called "scandals," this is the one case where it's clear there's something that needs to be fixed.
    Huh, I would have thought we might like to revisit the idea of sending US diplomats to lightly secured not-really-embassies in areas of conflict.

    You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

    by Rich in PA on Tue May 21, 2013 at 07:38:30 AM PDT

  •  Lindsey, I love it when your... (2+ / 0-)
    Recommended by:
    ManhattanMan, Milk River Madmen

    pretty pink knickers get into a bind...scandalous!

    And they scream... The worst things in life come free to us... Cause we're just under the upper hand... And go mad for a couple grams.

    by glb3 on Tue May 21, 2013 at 07:41:11 AM PDT

  •  What exactly is Graham saying? (2+ / 0-)
    Recommended by:
    Korkenzieher, RichM

    "“Maybe now that Fox is involved, more [Republicans] will pay attention, but it didn’t make a difference to me,” Graham said."

    •  It's almost like.... (4+ / 0-)

      Graham is admitting that Fox is special to Republicans, that somehow the Republicans view Fox as some kind of sacred cow that needs to be nourished and protected. Why would they view Fox as one of their own, when everyone knows that Fox is "fair and balanced"? It's not like Fox is merely the propaganda wing of the GOP.

      The Bush Family: 0 for 4 in Wisconsin

      by Korkenzieher on Tue May 21, 2013 at 07:46:43 AM PDT

      [ Parent ]

  •  When a reporter is called a "co-conspirator" (10+ / 0-)

    for doing his job and the govt. gets a warrant to go on a fishing expedition into his contacts, we all lose our First Amendment rights.

    This is an outrage.

    Obama is acting just like Richard Nixon in his contempt for the First Amendment.

    The story has been the same whether it's Occupy bloggers, Julian Assange or Fox News. This administration does not respect the First Amendment.

    The law needs to be changed to stop this abuse.

    look for my eSci diary series Thursday evening.

    by FishOutofWater on Tue May 21, 2013 at 07:42:14 AM PDT

    •  And people like Jed (7+ / 0-)

      should stop suggesting that what the DOJ did was legal; we don't know that. The spying was AP was much wider than was originally reported, making a mockery of the gov's claim that it was narrowly tailored. The AP is weighing legal action on constitutional grounds.

      And then there is, as you mention, the Rosen case, and who knows what else. Was it legal? Who knows? That's what an investigation, and perhaps a trial, is for.

    •  The amendment (9+ / 0-)

      In the AP case, the operative amendment is the 4th, not the 1st. The DOJ got a warrant, so it's not like anything illegal was done by the DOJ. We may need to change the law, and as an ACLU member I'm certainly in favor of a robust free press. But comparing Obama's DOJ, who got the court order required, with Nixon, who definitely broke the law, is a bit of an overstatement.

      The Bush Family: 0 for 4 in Wisconsin

      by Korkenzieher on Tue May 21, 2013 at 07:51:22 AM PDT

      [ Parent ]

      •  I'm not looking at just this one case (2+ / 0-)
        Recommended by:
        Aunt Martha, Mr Robert

        I'm looking at a pattern that has become evident based on many cases including Bradley Manning. Manning was held under conditions formerly known as torture.

        look for my eSci diary series Thursday evening.

        by FishOutofWater on Tue May 21, 2013 at 07:59:04 AM PDT

        [ Parent ]

        •  But nobody is trying to Shield... (0+ / 0-)

          ...Bradley Manning.

          That's my problem with these "Shield Laws". Basically they create a privileged class of people, "journalists", who get extra privileges.

          Usually to join this privileged class, you must be part of a Multinational Media Corporation.  Why should the Human Resources Department at Time Warner, Inc. get to determine who gets special 4th Amendment and 1st Amendment protections?

          I'm against any such law unless it also protects bloggers, small publications, and even guys standing on soap-boxes in parks.

          In fact, we probably need to rethink this. Maybe instead of a Shield Law, what we really want are stronger Whistleblower Laws.

          (btw, I'm not defending Manning at all).

      •  Actually, the DOJ got a subpoena, (4+ / 0-)

        not a warrant, because under the law it does not need a warrant.  Furthermore, the law does not require the DOJ to undertake the actions it took; it certainly maintains the option of entering into negotiations with AP for the information it wanted or to go to court to get that information from the AP.  Instead, it chose not to do so, and to violate its own guidelines in the process.

        Instead, as emptywheel writes, the DOJ has developed a formula that journalists are criminals:

        In other words, during a period from May 2010 through January 2011, Eric Holder’s DOJ was developing this theory under which journalists were criminals, though it’s just now that we’re all noticing this May 2010 affidavit that lays the groundwork for that theory.
        That's just as bad as Nixon, but in a different way.  And so the 1st amendment is absolutely operative, as is the 4th.
        •  Policy decision versus high crime (3+ / 0-)
          Recommended by:
          wishingwell, Eyesbright, doroma

          I accept that there's plenty of room to criticize Holder's taking a hard line on this as a matter of policy. But a political decision, even a bad one, that's lawful, isn't the same as the high crimes and misdemeanors that Nixon committed. And in the AP case, foreign intelligence assets were put at risk while this country is at war against al-Qaeda. It's a difficult question, but I think an intellectually honest case can be made both for and against the policy decision that Holder made. There's no justification for Nixon's behavior, which involved obstruction of justice solely in the service of naked personal political ambition. The Obama administration has done nothing like this, although I fully accept the validity of criticism of their policy, lawful though it was.

          The Bush Family: 0 for 4 in Wisconsin

          by Korkenzieher on Tue May 21, 2013 at 08:37:11 AM PDT

          [ Parent ]

          •  First of all, (3+ / 0-)
            Recommended by:
            BradyB, Mr Robert, DSPS owl

            this is simply not true:

            And in the AP case, foreign intelligence assets were put at risk while this country is at war against al-Qaeda.
            Secondly, you're making a false distinction between policy decisions and high crimes.  No, not all policy decisions are high crimes, but they can be--see, e.g., Iran-Contra, never mind the Bush administration's policy decisions vis-a-vis invading Iraq.

            So what's your justification for the potentially unconstitutional actions of what seems to be the DOJ's policy of the criminalization of journalism?

            •  Keep (0+ / 0-)

              Falling for the trap you fool.

            •  The policy (1+ / 0-)
              Recommended by:
              Eyesbright

              I'm not defending the policy. I'm saying no crime was committed. They sought a subpoena and got one. This wasn't a warrantless seizure of property. It was done under the law, following applicable Federal statutes. No one blatantly defied Congress, as Reagan and Oliver North did. No perjured themselves or obstructed justice, as the Nixon administration did. No one even lied, as Bush and Cheney did about their supposed justification for the Iraq war.

              You may disagree with the law or the subpoena or the decision made by the DOJ to cast so wide a net during an investigation of what may or may not be a crime. But the law was followed. If they change the law, pass a shield statute, I'm okay with it. If you want to criticize the policy decision, fine. But they got a court order, which means, under the 4th amendment, that they followed the law.

              You say sometimes bad policy decisions are crimes. Agreed. This may have been the former, but it wasn't the latter. Maybe it should have been, and maybe the law needs to be changed, but we don't do ex post facto laws in the US, so as a matter of law as it is today, no high crime or misdemeanor occurred.

              The Bush Family: 0 for 4 in Wisconsin

              by Korkenzieher on Tue May 21, 2013 at 11:30:18 AM PDT

              [ Parent ]

              •  I'm assuming that you're stepping back from (1+ / 0-)
                Recommended by:
                Korkenzieher

                the national security claim, as you've dropped that.

                As for the rest, the fact of the matter is that the DOJ had choices.  The law doesn't require them to subpoena the records from the telecom companies.  They could have followed their guidelines and negotiated with the AP.  They could have gone to court themselves.  Instead, they chose to secretly go on a fishing expedition, which is in keeping with how they've been criminalizing journalists in the name of national security.  That has nothing to do with ex post facto laws but everything to do with further trampling on what's left of the first amendment.

                •  National Security (0+ / 0-)

                  I hadn't seen Marcy Wheeler's push-back on the national security claim. I've seen it now (thanks for the link) and I just read a similarly scathing piece in The Guardian from Glenn Greenwald.

                  Glenn Greenwald

                  The first thing I'd read was Holder's assertion a couple of days ago that thing had to do with national security, an assertion which I took at face value.

                  So now there's doubt about the policy, and whether the whole thing was just an exercise in political face-saving and the timing of the release of the info. So I don't know.

                  But I'm still not willing to concede the point on whether a law was broken. I don't believe a law was broken. I don't believe that Eric Holder is the functional equivalent of John Mitchell. But I'm certainly willing to support a journalism shield bill should a reasonable version be put before Congress. Until that happens, however, here we are....

                  The Bush Family: 0 for 4 in Wisconsin

                  by Korkenzieher on Tue May 21, 2013 at 12:43:18 PM PDT

                  [ Parent ]

                  •  New York Times OpEd: Stop The Leaks (3+ / 0-)
                    Recommended by:
                    Korkenzieher, Tony Situ, MKSinSA

                    Today's NY Times has an article co-written by three people who have nothing to gain from this but do have eminent standing to comment:
                    William P. Barr was the United States attorney general from 1991 to 1993. Jamie S. Gorelick was deputy attorney general from 1994 to 1997. Kenneth L. Wainstein was assistant attorney general for national security from 2006 to 2008.

                    The United States and its allies were trying to locate a master bomb builder affiliated with Al Qaeda in the Arabian Peninsula, a group that was extremely difficult to penetrate. After considerable effort and danger, an agent was inserted inside the group. Although that agent succeeded in foiling one serious bombing plot against the United States, he was rendered ineffective once his existence was disclosed.
                    http://www.nytimes.com/...

                    Read the article and note that there were "strong bipartisan calls for the Justice Department to find the leaker."

                    To stand in silence when they should be protesting makes cowards out of men. -Abraham Lincoln

                    by Eyesbright on Tue May 21, 2013 at 01:16:00 PM PDT

                    [ Parent ]

                  •  Of course Holder is going to push (1+ / 0-)
                    Recommended by:
                    Korkenzieher

                    the national security line; he and Obama, like GWB and his DOJ before him, like many presidents and people in power, use national security as a fig leaf for encroaching government powers.  It's our job to be dubious of such claims without incontrovertible evidence.

                    The NYTimes op-ed below is just another attempt at shoring up the national security lie.

                    •  You're right, but... (0+ / 0-)

                      My initial inclination is to be dubious about Obama's enemies. So criticism of Obama and his administration is easy to view with a great deal of skepticism. That's what I did. I'll keep watching, as we all will, to see what comes next.

                      The Bush Family: 0 for 4 in Wisconsin

                      by Korkenzieher on Tue May 21, 2013 at 04:14:15 PM PDT

                      [ Parent ]

      •  I'm not sure any statute would actually (2+ / 0-)
        Recommended by:
        mspicata, Tony Situ

        protect against either search, nor that it would be a problem.  To the extent a media shield law creates a testimonial privilege, it wouldn't touch the AP.  It could possibly protect Rosen's work product, i.e. his e-mails, but even there, such statutes typically have burden shifting elements where the govt can obtain otherwise-protected material upon a proper showing of public interest or safety, and that could plausibly be met with the North Korea leak.  
        Given that the First Amendment would preclude the government from enjoining publication as a prior restraint, the First and Fourth amendments are really working at cross-purposes.  Unless one wants to create total immunity for journalists (and therefore bloggers?), the combination of a testimonial privilege and a bar on prior restraints pretty much means that the government would have a valid right to obtain documentary evidence.

         It's not good that the government affirmed that probable cause existed that Rosen broke the law, but they of course didn't charge him, and I don't know they could have obtained records through other means.  It's also not completely crazy, given that he wasn't simply cultivating a personal relationship with Kim but rather soliciting agreement with Kim that Kim would break the law (allegedly). But a leak of this magnitude seems like the sort of thing worth investigating, and validly obtained 4th amendment searches of journalists are a lot less threatening to the First Amendment than the alternative of revisiting the Pentagon Papers concurrences.

        Difficult, difficult, lemon difficult.

        by Loge on Tue May 21, 2013 at 08:23:42 AM PDT

        [ Parent ]

    •  The judge... (1+ / 0-)
      Recommended by:
      jdsnebraska

      Still gave the warrant.  I'm not saying this isn't an outrage - but we have given prosecutors and police very wide berth in this country.  The prosecutors and police can lie with impunity to get a person to confess.  But whoa be you if you get your facts mixed up.

      'Where free unions and collective bargaining are forbidden, freedom is lost' - Ronald Reagan, Communist

      by RichM on Tue May 21, 2013 at 08:05:18 AM PDT

      [ Parent ]

    •  I don't think the President has contempt for the (6+ / 0-)

      First Amendment. There is a genuine struggle between First Amendment rights and the effort to keep the public safe. And until a solution is found that can weigh these two issues in equal balance there will always be conflict.

      Person A is working behind enemy lines to save lives by monitoring the activity of group B.

      News entity C learns about the operations of Person A.
      Is it right for news entity C to disclose the operations of Person A and place him or her at risk of being killed?

      These are the grave issues at play. It is not as simplistic as "the President has contempt for the First Amendment."

      That statement does not accurately capture what struggles at play here.

      The President is hired based on his or her abilities to keep us safe, yet uphold the constitution.... This can be quite difficult. We can criticize the President’s actions because we are divorced from the responsibility of acting, but the President has to weigh his or her course of action, based on two provisos: keeping us safe, and protecting our First Amendment rights…

      •  Where in the Constitution does it say this: (2+ / 0-)
        Recommended by:
        BradyB, Mr Robert
        The President is hired based on his or her abilities to keep us safe, yet uphold the constitution
        Here's the presidential oath of office:
        I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
        •  What do you think faithfully execute the office (0+ / 0-)

          of the presidency mean?

          Part of the office of the president is being the commander in chief, or in other words:

          Commanding the U.S. armed forces, as well as any state militias under federal control.....

          Why do you think the President is concerned with commanding the U.S. armed forces?

          As far as you're concerned it means NOT TO KEEP THE U.S. SAFE.....

          Hmmm.... Thanks for your great insight....

  •  Of course (1+ / 0-)
    Recommended by:
    JBL55

    one could logically argue, with facts and thousands of hours of proof,  that Fox News is not the press at all, but either a reality TV network or a political TV channel... thus completely exempting it any Freedom of the Press rights. Perhaps in any bill, they need to define what a 'reporter' of the facts is.

    •  This one was one of the few examples of Fox (1+ / 0-)
      Recommended by:
      TexasTom

      actually acting like a news organization.

      Ironic that they got in trouble when they started going after the truth instead of making up lies.

      look for my eSci diary series Thursday evening.

      by FishOutofWater on Tue May 21, 2013 at 07:44:57 AM PDT

      [ Parent ]

    •  Not a good idea. (1+ / 0-)
      Recommended by:
      Richard Lyon

      Too rigid a definition of "reporter" could potentially be used against people for political purposes, particularly if the court has to decide whether what they report is "fact".

    •  If (0+ / 0-)

      only we had an actual "press", what we have is TMZ on steroids. ABC can report false information as fact

      NY Post can put two random people on the cover of a newspaper and be labeled as the Boston Bombers.

      AP does stories about an actress becoming a Bikini model, they did a story about Cannes Film Festival.

      Fox News isn't really news, it's propaganda.  

      So let's be honest here, we have a faux media.

    •  First Amendment protects crappy media... (0+ / 0-)

      ...as well as serious journalism.

      So, yes, for the purpose of this discussion, Fox News actually is part of the press.  Granted, it's a descendant of the Hearst journalism of the late 19th century...

      Political Compass: -6.75, -3.08

      by TexasTom on Tue May 21, 2013 at 11:07:45 AM PDT

      [ Parent ]

  •  Shield my foot (1+ / 0-)
    Recommended by:
    anonevent

    The First Amendment is not a shield, there is no such thing as journo-source privilege (journos invented the lie that there is), there is no need for one, there ought not to be one, and a shield law is likely unconstitutional and certainly should be struck down as such.

    Clear now?

    •  No. This First Amendment has become a doormat. (2+ / 0-)
      Recommended by:
      Aunt Martha, Mr Robert

      Without laws to enforce it effectively it might as well not exist. The proposed shield law may be f'd up but something needs to change to stop the trampling of the First Amendment.

      look for my eSci diary series Thursday evening.

      by FishOutofWater on Tue May 21, 2013 at 07:47:49 AM PDT

      [ Parent ]

    •  Maybe it's needed? (0+ / 0-)

      I can see it being useful for journalists to be able to keep sources anonymous, so that they can tell stories that otherwise couldn't be told.  The goal of the rights to free speech and free press is to allow the public to gather enough information to adequately participate in democracy, and journalists being able to report information that could get someone fired for leaking it seems like it would help in that regard.

    •  Goes way too far (0+ / 0-)

      I don't know on what basis such a statute would be unconstitutional.  Versions of this law exist in most states, and Congress has every right to create rules for proceedings in Article III courts.  It's not a privilege that exists at common law, no, but that's irrelephant, as Groucho Marx would say.

      I dont' see an automatic tension between passing a shield law and the DOJ's ability to conduct the searches it did in the AP or Rosen cases (both of which were plausibly justifiable), but Judith Miller or James Risen would have been protected from contempt proceedings for refusing to testify (obviously those two are very different kinds of journalists).  I don't know if I'd have signed off on the searches, but they make enough sense given the risks to national security of the leaks in question that they're not good bricks on the "War on the 1st Amendment" pyramid.  

      Difficult, difficult, lemon difficult.

      by Loge on Tue May 21, 2013 at 08:29:06 AM PDT

      [ Parent ]

  •  Jed wrote this? The Apocalypse is nigh. (1+ / 0-)
    Recommended by:
    FishOutofWater
    Ironically, President Obama was a co-sponsor of the media shield law that Graham opposed. Despite the fact that his Justice Department has now snooped on both the AP and Fox, he still supports such a law, though in 2009, he opposed an effort to revive the bill that he'd cosponsored one year earlier. That puts him in a position of saying that there needs to be a media shield law to protect reporters from his administration, which seems sort of ridiculous—but also seems accurate.

    The patellar reflex is a deep tendon reflex which allows one to keep one's balance with little effort or conscious thought.

    by SpamNunn on Tue May 21, 2013 at 07:47:55 AM PDT

  •  I call Bullshit! (0+ / 0-)
    “Maybe now that Fox is involved, more [Republicans] will pay attention, but it didn’t make a difference to me,” Graham said.
    SMH

    "The first duty of a revolutionist is to get away with it.". Abbie Hoffman

    by Joes Steven on Tue May 21, 2013 at 08:10:30 AM PDT

  •  paranoia (0+ / 0-)

    Paranoia begets over-reaction-begets bad government-begets abusive acts--can lead to Fascism.  It's not a slippery slope--it's a bottomless pit.  No law will change this over reaching--we need to eliminate the fear.  We were a country that was willing to endure letting a guilty person go free rather than put an innocent man in jail.  That is now reversed--hell--even habeas corpus is now not a given.  We had ideals--supposedly--which we are willing to override for supposed safety.  We are sick.

    Under capitalism, man exploits man. Under communism, it's just the opposite. John Kenneth Galbraith .

    by melvynny on Tue May 21, 2013 at 08:16:09 AM PDT

  •  The national security exception in the bill under (1+ / 0-)
    Recommended by:
    Mr Robert

    consideration would render the law meaningless in cases like the Rosen/Fox News one.  And in the AP case too.

    Reporters in such cases would not be protected at all.

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Tue May 21, 2013 at 08:31:06 AM PDT

  •  This is a serious constitutional issue. (0+ / 0-)

    Trying to conflate it with the political clown acts like umbrellagate is not a constructive response. The legal issues need to be carefully explored by someone who is competent to do that such as Adam B. This exercise in tangled dissemiuation  is an embarrassment.

  •  Lindsey seems to have taken a side but what a..... (0+ / 0-)

    dilemna for the of the GOP legislators; go along with the democrats in order to protect their ministry of propraganda or go with their usual response of no.

  •  Hmmm (0+ / 0-)

    Is there a connection between the Republican response, and a potential spread of the FOX U.K. hacking scandal to the U.S.?

    Normal Republican response is to fire up the wahmbulance, not to propose useful legislation.

    (Yes, there is the dam 'national security' loophole, but the rest of the law is actually useful.)

    Does it not seem weird to anyone else that a Republican proposed legislation protecting the press in any degree?

    "What could BPossibly go wrong??" -RLMiller "God is just pretend." - eru

    by nosleep4u on Tue May 21, 2013 at 08:55:29 AM PDT

  •  "national security exception" == no shield (1+ / 0-)
    Recommended by:
    Mr Robert

    Nixon tried to shut down Watergate investigations by claiming national security, and in fact several of the original Watergate burglars had intelligence backgrounds.   This shield law Obama backs would still have let Nixon prosecute Woodward and Bernstein.

    Forget it; the shield law they are now talking about is phony.  These days, internal discussions of foreign policy, defense policy, and "homeland security" are all classified, so if a reporter is investigating any of these areas, the shield would not apply.

  •  Maybe Graham can get a special law for Fox News (0+ / 0-)

    and the Daily Caller!

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