THE ATLANTIC: The bombshell disclosure that the Justice Department secretly obtained two months of telephone records of Associated Press reporters and editors could be dramatic enough to move even the phlegmatic Obama administration to action. Three concurrent scandals or controversies are just too many. Could that mean we will be bidding farewell soon to Attorney General Eric Holder? MORE
THE HILL: As someone who has spent much of his adult life in politics and journalism, I find the action by the Department of Justice in targeting The Associated Press and its reporters as utterly reprehensible and crying out for some dramatic response.
GLENN GREENWALD: The legality of the DOJ’s actions is impossible to assess because it is not even known what legal authority it claims nor the legal process it invoked to obtain these records. Particularly in the post-9/11 era, the DOJ’s power to obtain phone records is, as I’ve detailed many times, dangerously broad. It often has the power to obtain those records without the person’s knowledge (as happened here) and for a wildly broad scope of time (as also happened here). There are numerous instruments that have been vested in the DOJ to obtain phone records, many of which do not require court approval, including administrative subpoenas and “national security letters” (issued without judicial review); indeed, the Obama DOJ has previously claimed it has the power to obtain journalists’ phone records without subpoeans using NSLs, and in its relentless pursuit to learn the identity of the source for one of New York Times’ James Risen’s stories, the Obama DOJ has actually claimed that journalists have no shield protections whatsoever in the national security context. It’s also quite possible that they obtained the records through a Grand Jury subpoena, as part of yet another criminal investigation to uncover and punish leakers.
None of those processes for obtaining these invasive records requires a demonstration of probable cause or anything close to it. Instead, the DOJ must simply assert that the records “relate to” a pending investigation: a standard so broad that virtually every DOJ desire will fulfill it. Even if a court were involved in the acquisition of these records – and that’s unlikely here – it typically does little more than act as rubber-stamping functionary, just as it does when secretly approving the DOJ’s requests for FISA warrants. This is what is reaped from continuously vesting the US government with greater and greater surveillance powers in the name of Terrorism and other fears.
There has long been concern about the DOJ’s snooping into the communications which journalists have with their sources precisely because the DOJ’s power to obtain phone data and other sensitive records in secret is now so sweeping. Attempts to enact legislation to protect journalists from this type of concealed investigative intrusion into their source communications have been defeated in part due to the DOJ’s insistence that it exercises this power responsibly and only in the most extreme cases. MORE
NOAM CHOMSKY: I personally never expected anything of Obama, and wrote about it before the 2008 primaries. I thought it was smoke and mirrors. The one thing that did surprise me is his attack on civil liberties. They go well beyond anything I would have anticipated, and they don’t seem easy to explain. MORE
ACLU: Obtaining a broad range of telephone records in order to ferret out a government leaker is an unacceptable abuse of power. Freedom of the press is a pillar of our democracy, and that freedom often depends on confidential communications between reporters and their sources. MORE
ELECTRONIC FRONTIER FOUNDATION: By obtaining these records, the DOJ has struck a terrible blow against the freedom of the press and the ability of reporters to investigate and report the news. As James Madison understood, “a popular government without popular information or the means of acquiring it is but a prologue to a farce or tragedy, or perhaps both.” AP had it right when it told Attorney General Holder that it was “a serious interference with AP’s constitutional rights to gather and report the news.” The DOJ’s decision to dive deep into these call records also shows the growing need to update our privacy laws to eliminate the outmoded Third Party Doctrine and to recognize that datamining has now reached the point where it no longer makes sense to treat calling records and other metadata related to our communications as if they aren’t fully protected by the Constitution.
The widespread collection of information, as well as the apparent delay in notifying AP, both appear to be yet another violation the government’s own regulations, 28 C.F.R. sec. 50.10. In 2010, the DOJ Inspector General reported on three other violation, involving the Washington Post and New York Times. The regulations require that, “wherever possible” subpoenas of records of the news media should be “directed at material information regarding a limited subject matter, should cover a reasonably limited period of time and should avoid requiring production of a large volume of unpublished material.”
It is disturbing enough that the government appears to have violated its own regulations for subpoenas to the news media. However, this revelation also shows that we have a severe problem in protecting the privacy of our communications. It is critical to update our privacy laws and our understanding of the Constitution, and reflect the realities of what law enforcement can determine from our records and other metadata about our communications stored with our communications providers, be they phone companies, ISPs or social networks. MORE
DAILY BEAST: The action against AP comes as no surprise because it is safe to say Obama is paranoid about stopping leaks. He has indicted six leakers, more than any other president in history. The previous record was three, and that encompasses the entire history of the country. But there surely is more to come. Obama has indicted six leakers, more than any other president in history. First, Obama has been pursuing James Risen, a New York Times reporter, for the source of a leak he received about Iran’s nuclear program. Risen published this leak in his book, “The State of War: the Secret History of the C.I.A.” When Obama’s Justice Department sought the source of the leak, Risen refused to give it. He won his case in the Federal District Court in Virginia in 2011. The government appealed, and that appeal has been sitting undecided for 17 months. Should Risen lose his case on appeal, which is entirely likely, most observers believe he will refuse to testify and go to jail, as did Judy Miller. Obama will then be faced with another controversy of a similar magnitude to that he faces today. Secondly, early next month, the trial of Pfc Bradley Manning is scheduled to begin. Manning leaked information to Julian Assange, the founder of the website WikiLeaks. Assange published the leaks, as did the Guardian, the New York Times, der Speigel, El Pais, and Le Monde. Manning’s trial may well be the most significant “leak” trial ever. The government purportedly will produce as many as 100 witnesses or more to prove Manning, and inferentially the New York Times and the other papers, damaged national security under the Espionage Act, and aided the enemy. MORE