So, now we have the third in what has become a perfect storm of scandals for the Obama Administration.
After Benghazi and the IRS’s political profiling of conservative groups for special scrutiny of their tax-exempt status, we now have the revelation that the Justice Department seized two months of telephone records of journalists at the Associated Press, one of the world’s leading news organizations.
The records covered more than 20 AP telephone lines in New York, Hartford, Conn., and Washington. D.C. Home- and cell-phone records of several AP journalists also were seized—all without prior notification.
The actions came in the wake of a May 7, 2012 AP report about how the government had foiled a terrorist plot by an Al Qaeda-linked group in Yemen to blow up an airplane. The AP had held that story until the government cleared its release.
But when it came out, congressmen of both parties demanded to know how that information had leaked. DOJ launched an investigation that included 550 interviews and a review of tens of thousands of documents.
Apparently they had no luck finding the source, so they continued their fishing expedition with this deep dive into AP phone records. Attorney General Eric Holder, who had recused himself from the investigation and appointed a deputy to conduct it (was it an excess of ethics or just deniability on his part?), declared Tuesday that the information disclosed in the AP article was among “the top two or three most serious leaks that I’ve ever seen.”
In a letter to Holder, AP President and CEO Gary Pruitt objected to DOJ’s “massive and unprecedented intrusion” into the AP’s news gathering operations. He continued:
The regulations require that, in all cases and without exception, a subpoena for a reporter’s telephone toll records must be “as narrowly drawn as possible.” This plainly did not happen.
We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.
As much as I find DOJ’s conduct chilling and reprehensible, it may not be illegal. As Timothy Lee pointed out in an insightful Washington Post article Wednesday, a 1979 Supreme Court decision “allows the government to engage in this type of surveillance—on media organizations or anyone else without meaningful judicial oversight.” Lee explained:
Before an FBI agent can seek a journalist’s call records, they must get special approval from the attorney general. But that’s merely a Justice Department policy, not a constitutional requirement.
The real problem here is the inexorable rise of the national security state, which has given the federal government extensive new powers.
It started during World War II under FDR, grew rapidly during the Cold War and Vietnam and reached its apex in the criminal administration of Richard Nixon. Congress eliminated some abuses in the post-Watergate period, but then Ronald Reagan reversed that tide.
In the wake of 9/11, the Bush-Cheney administration did an end run on the Constitution with warrantless wiretapping, secret renditions to other countries, secret prisons for alleged terrorists abroad, and other practices blessed by Congress in the Patriot Act.
President Obama ran on a platform of transparency and closing the Guantanamo Bay prison. He has rolled back some of the war on terrorism’s abuses, but his administration is extremely secretive and has prosecuted six alleged “leakers”—twice the number of all previous presidents.
Bottom line: once a president gets executive powers, he’s reluctant to give them up, good intentions or not. That’s the real scandal here.