Why The Department Of Justice Is Going After The Associated Press’ Records

[ProSense]

Why The Department Of Justice Is Going After The Associated Press’ Records

By Hayes Brown

News broke on Monday that the Department of Justice secretly sought phone records of reporters at the Associated Press...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 2011 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.

- more -

http://thinkprogress.org/justice/2013/05/13/2005021/doj-yemen-aqap/

Here's what I want to know: Was there a subpoena or a warrant involved?

[jberryhill]

1. Should a warrant be needed to search something owned by a corporation?

Are we going to give corporations Fourth Amendment rights now?

[Skip Intro]

2. Should a warrant be needed to tap press phone lines?

Is that what you're asking?

[jberryhill]

3. Not according to Move To Amend

https://movetoamend.org/wethepeopleamendment

The rights protected by the Constitution of the United States are the rights of natural persons only.

Freedom of the Press is a First Amendment right. Are you suggesting corporations have First Amendment rights?

[muriel_volestrangler]

12. "freedom of the press" has to apply to a collection of people, not just an individual

It's not "freedom of the handwriter", is it? The whole point about it is that it applies to a collection of people who write a story, then print it, and then distribute it. That's how newspapers work. It's how they worked in the late eighteenth century, too.

[jberryhill]

13. One person can own and operate a press

The New York Times Corp. is a corporation. There are no two ways around that.

So is Democratic Underground LLC.

[muriel_volestrangler]

17. Do you think "the press" was intended to be restricted to one person operations?

Do you think there is a single example of 'the press' being used to mean only individuals who write print and distribute all of the material themselves?

There's no point in making up new definitions for "the press" just to make the constitution look neat. "The press" refers to groups of people who work together. That part of the constitution does fit corporations.

[jberryhill]

18. You can argue with Move To Amend on that one

Okay, but we are talking about ink on paper.

Not making movies or videos, correct?

(Ben Franklin, btw, set his own type and printed his own stuff)

Because by "that part of the Constitution" you don't mean "free speech" or "exercise of religion", you only mean "press", yes?

My understanding of "freedom of the press" meant the freedom to publish things without government censorship. There is nothing in this AP story that has anything to do with censorship of anything the AP published. But I'm guessing your definition of "freedom of the press", which is now a Constitutional right which should somehow apply to corporations, means something quite different than freedom from restraint of publication. What do phone records have to do with that?

[muriel_volestrangler]

21. I have no interest in 'Move To Amend' at all

If whoever they are think "the press" means only individuals, then they're being silly. I was just worried that you were taking such an argument seriously. I'm still worried by that.

"Not making movies or videos, correct? "

(When you say "correct" like that, you appear to be trying to put words into my mouth, since I have not talked about movies or video yet. Which is a good way to get the hackles up of anyone you're talking to. It seems a bad move on your part, if you're actually interested in a conversation)

To take the spirit of the constitution into account, I would say that telegraphy, movies, radio, TV, video and the internet are all later forms of media that a court would say "freedom of the press" should be a principle for as well.

No, I don't think freedom of speech applies to corporations. Because the primary meaning of 'speech' is what people do. "Exercise of religion" is more complicated; individuals exercise their religion, but the main way they do it is in concert with many other people - organised religion.

Though it's not strictly part of my earlier argument (I just want to head off the misguided notion that all parts of the constitution only apply to individuals), "freedom of the press" is normally taken to mean there should not be undue interference with the functioning of the press - such as a blanket seizure of phone records, when they just want to see if it was someone in the American intelligence agencies (as opposed to the Saudi ones, who were actually running the operative concerned, and who seem to be the main source for the Washington Post story that ThinkProgress links to) who was the source for the revelation that overseas intelligence operations are run by an outfit called the 'CIA'.

[jberryhill]

24. I say "correct?" to avoid putting words into someone's mouth

It leaves open the answer of "no that is not correct" when I'm trying to figure out an implication of what I might misunderstand to be someone's position.

But if you include movie production, then do you understand the activity in question in Citizen's United was producing a movie? That's what they were doing.

[muriel_volestrangler]

39. Citizen's United is a topic for another thread

This one is about Associated Press reporting news, that is, factual accounts of current events. Their activities were, extremely obviously, what the constitution means, and has always meant, by 'the press'.

[jberryhill]

45. But you included making movies in your definition of "press"

So I am confused. Does a corporation have a right to make a movie about current events? Does the opinion expressed in that movie matter?

[muriel_volestrangler]

46. That was an 'electioneering communication'

They always had the right to make it, even under the McCain–Feingold Act. What the act prohibited was advertising or showing it in the middle of other broadcasts - not how 'the press' delivers a message, ie the recipient making a decision to receive information, but, instead, how commercial entities market things. The CU film was not part of 'the press', any more than "Things Go Better With Coke" is. Unfortunately the majority of the Supreme Court decided to use the 'freedom of speech' clause with corporations. But Stevens said about the press clause:

In critiquing Austin ’s antidistortion rationale and campaign finance regulation more generally, our colleagues place tremendous weight on the example of media corporations. See ante , at 35–38, 46; ante , at 1, 11 (opinion of Roberts , C. J.); ante , at 6 (opinion of Scalia , J.). Yet it is not at all clear that Austin would permit §203 to be applied to them. The press plays a unique role not only in the text, history, and structure of the First Amendment but also in facilitating public discourse; as the Austin Court explained, “media corporations differ significantly from other corporations in that their resources are devoted to the collection of information and its dissemination to the public,” 494 U. S., at 667. Our colleagues have raised some interesting and difficult questions about Congress’ authority to regulate electioneering by the press, and about how to define what constitutes the press. But that is not the case before us. Section 203 does not apply to media corporations, and even if it did, Citizens United is not a media corporation

http://www.law.cornell.edu/supct/html/08-205.ZX.html

[leveymg]

41. Are you suggesting that neither the 1st nor the 4th Amendments apply to AP? eom

[jberryhill]

44. End Corporate Personhood!

So now, at long last, we are going to get upset over Constitutional rights by so-called "corporate persons"?

A lot of DUers are going to have to make up their minds whether they want corporations to have constitutional rights.

A number of them make an artificial distinction that one or another corporation can be distinguished as "press". Exxon prints a lot of publications, newsletters, and so on. Does that make them "press" too?

But here we are jumping from the 1st clean over to the 4th, which doesn't say anything about "press", and "freedom of the press" is generally understood to be the freedom to print and publish things. This current hoopla is about making telephone calls, not printing things.

It's the sudden shift in when or whether corporations have constitutional rights that I frankly find amusing. A number of DUers support a movement called "Move To Amend" which would amend the Constitution to expressly limit ALL constitutional rights solely to natural persons - and hence do not support corporations being able to claim "freedom of the press" under the First Amendment as well.

But even getting back to the thing that kicked all this off - Citizens United. It has become absolutely clear that the majority of DUers have not the first notion of what that case was actually about, or what specific activity CU was engaged in. CU was not about whether corporations could make unlimited donations to political candidates. Citizens United was making a movie. They were just making a movie. It was a crappy attack movie against Hillary Clinton, but a movie nonetheless.

It wasn't that the CU decision said "money equals speech". It's the exact opposite. Because CU's movie production was seen as helping one side of a campaign, it was deemed an "in kind" contribution. In other words, the real fact of the matter was the equation of "speech equals money".

But if you ask people "Should a movie production company have a constitutional right to make a movie about whatever it wants" some will claim that "freedom of the press" extends to all expressive media, including movies.

At the end of the day, if corporations don't have first amendment rights, then US v. New York Times - the Pentagon Papers case - is overturned. And this "press" distinction evaporates since if I rename "Citizen's United" as "Citizen's Press", then do they get to print whatever they want, or make a movie about whatever they want?

[ProSense]

4. This was not a tap, and

I would love to see this headline:

FISA comes back to bite media in the ass.

[leveymg]

42. Subpoena to telco reveals reporters phone records - who calls, who gets called. Called a "pen trap."

[choie]

11. The press is protected

by the constitution, remember? it's not just any old corporation..

[jberryhill]

15. Okay, so....

Is your point that corporations should have some constitutional rights, or is your point that some corporations should have constitutional rights?

There is no difference between Corporation X and Corporation Y. If Procter & Gamble wants to print a newspaper, do they get this "freedom of the press"?

And, finally, does your notion of "freedom of the press" extend to media such as film or video?

And, incidentally, the protection against unwarranted search and seizure is the Fourth Amendment. Was AP publishing a newspaper through its phone lines? Or are you saying that if a corporation is a "press" corporation (however one qualifies for that distinction) then do they get all the other rights, or just the freedom to print what they want?

[sabrina 1]

23. Should journalists be spied on in a Democracy?

[leveymg]

40. Corporations are already legally treated as "US persons" for FISA purposes. eom

[Bandit]

5. Patriot Act says no stinkin' warrant is needed...

This Administration is every bit as atrocious as the previous Administration on Constitutional issues...It is "only a goddamn piece of paper" you realize...

[CJCRANE]

6. Yes, I assumed "warrantless wiretapping"

meant just that, that anything and everything was fair game.

That's the way it seemed in the Bush era anyway.

[Gin]

33. The Boston bombers call from wife is case in point.....an attorney on CNN said they will listen to

The call to decide if she knew...... and that all of our calls are monitored.......the other attorneys laughed because its a little known secret.....ALL our calls are monitored.......so......they dont need a subpena in this case IMHO

[JaneyVee]

7. Oh I can't wait to see the hypocrisy of conservatives getting outraged about this.

This week has been like the Twilight Zone. They weren't mad at 10+ embassy attacks under Bush, 60 dead, but they're OUTRAGED at Benghazi. They weren't mad when the IRS targeted the NAACP in 2004, but now they're OUTRAGED! They weren't mad when the Patriot Act was signed and the surveillance state was created, but now they're OUTRAGED!

[Rebl]

22. You

Are so right!! I'm sick of their fake outrage.

[winter is coming]

8. If they had a subpoena or a warrant, this wouldn't be much of a story.

I doubt they had either.

[geek tragedy]

9. Yes it would. It'll be a bigger story if there were none, but

still a BFD if there wasn't.

[leveymg]

43. Spying on mainstream media is still big news in the US

[mick063]

10. Big Deal

The folks that raped our Nation's wealth in 2008 are doing more of the same.

Let's go after pot dispensers and journalist sources, but by God, leave those bribing, blood sucking, financial "services" executives alone. Better yet, rewrite the laws so their thievery is legal.


I have no confidence in the Department of "Justice".

[Earth_First]

14. Good job, AP...

Prior to this it certainly was unthinkable that the CIA was on to AQAP.

[Douglas Carpenter]

16. coming on the back of and mixed with the Benghazi story and the IRS story this is not good

The fact that Republicans would do much worse and low expectations would mean less outrage - only makes the story bigger. Just as the revelation of Catholic Priest pedophilia made for a bigger scandal than if the story had been psychotic derelict pedophilia.

[ProSense]

20. Actually,

"coming on the back of and mixed with the Benghazi story and the IRS story this is not good...The fact that Republicans would do much worse"

...Benghazi is bullshit (http://www.democraticunderground.com/10022836611) and the IRS story is media masturbation (http://www.democraticunderground.com/10022836680).

[Skip Intro]

25. You're dismissing the IRS story?

It is ok for the government to use its power and authority to stifle political dissent?

That's ok?

[ProSense]

26. Why

"You're dismissing the IRS story?"

...you think there is something there: http://www.democraticunderground.com/10022836843

[Skip Intro]

27. Oh come on.

Please don't be so obtuse.

The IRS intimidated, clearly, political opponents of Obama and Democrats.

Yeah, I think there's something there.

Something that makes me sick as an American.

Are you actually trying to pass it off as nothing?

[ProSense]

28. Maybe

Please don't be so obtuse.

The IRS intimidated, clearly, political opponents of Obama and Democrats.

Yeah, I think there's something there.

...you're engaging in some wishful thinking? A Republican political appointee has no reason to work to help Democrats.

No, it's not "nothing," but clearly you're hoping it's something it's not. LOL!

http://www.democraticunderground.com/10022836081

[Skip Intro]

29. If you think it isn't nothing, then what do you think it is?

[ProSense]

30. Oh

"If you think it isn't nothing, then what do you think it is?"

...it's a lot of things, including hypocrisy.

IRS targeted church for speaking out against White House two days before the president's reelection
http://www.democraticunderground.com/10022836780

IRS trolling Tea Party and conservatives was wrong, but these political groups invited IRS scrutiny
http://www.democraticunderground.com/10022836332

Was the IRS targeting political organizations, or not? Republicans can't have it both ways
http://www.democraticunderground.com/10022836622

[Skip Intro]

31. So no effort to hamper or stifle political speech?

That's what you're saying?

[ProSense]

32. No,

"So no effort to hamper or stifle political speech? That's what you're saying?"

...but who do you think made an "effort to hamper or stifle political speech"?

[Skip Intro]

34. Just to be clear:

Probably the most powerful, domestically, arm of our government purposely searched for groups who were political opponents.

That's everywhere. Not in question. They purposely sought out groups expressing dissenting political opinion.

The IRS targeted and placed undue burden on political opponents of Democrats and Obama.

Targeted simply for their political views.

Widely reported.

And its really not a big deal to you.

That's what you're saying, right? No big deal.

I think you're gonna have trouble selling that even here.

[ProSense]

35. Maybe this will be

more clear: http://www.democraticunderground.com/10022839564

"I think you're gonna have trouble selling that even here."

Why you think everyone here buys the GOP bullshit frame?

[Skip Intro]

36. Now you're wasting my time.

You link to one of your threads trying to spin away the facts, and that thread got one reply, and that one reply was to call you on your propaganda effort.

That was an accurate reply.

[ProSense]

37. On this point

"I think you're gonna have trouble selling that even here. "

http://www.democraticunderground.com/10022839419

[Skip Intro]

38. Evasive "answer" with mandatory link to something.

anything, but there must be a link...

and distraction and diversion...

The only reason this hasn't been a massive waste of time for me is because I'm cutting it short right now.

[CreekDog]

47. You're saying that non-profit groups should be able to use tax deductible funds for political speech

well that's novel, contradictory of the law, and not all that surprising.

[Cha]

19. Found this comment on ThinkProgress.. FWIW

Matthew Rusk

The SCOTUS ruled in Smith v Maryland in1979 that who you call is not constitutionally protected because you have no expectation of privacy since you gave that number to the phone company. There is no constitutional need for a warrant, though Congress has the right to pass legislation requiring it (which I do not believe they have done). The AP is complaining that their First Amendment right as journalists are being threatened or interfered with, but they didn't seem to mind while private citizens have had their First Amendment rights to speech and free association threatened in the same way for almost 25 years.