AP leak probe, why it matters

The news that the US government secretly monitored phone records of scores of Associated Press (AP) reporters bothers me.


In contrast, the Benghazi “scandal” is a joke, in so far as anyone calling it a “scandal.”

Four Americans died when a mob attacked in Benghazi, Libya.  And whether or not Al Qaeda had a hand in it, it’s absurd to call it a “scandal” and a “cover up” simply because the administration was careful about calling the rather simplistic attack – it was a mob, after all, not a coordinated series of bombs or anything sophisticated – a “terrorist” attack.  And regardless of whether it was “terrorism” in retrospect, you don’t just declare such things willy-nilly at the outset of the investigation into what happened.

There’s also the little point about the email at the basis of the Benghazi “scandal” now being revealed to be a forgery.  That also minimizes the “scandal” potential.


The IRS “scandal” is a little more interesting, but it’s still not clear that there’s any there there, yet.

Previous IRS scandals – Nixon’s comes to mind – were ordered by the president himself.  There’s no such evidence that President Obama was even aware that the IRS was doing anything regarding the Tea Party.

Second, it’s not like this would be the first IRS to target political opponents: Bush’s famously went after the NAACP.  Whether that makes it acceptable is another question.

And finally, and this is the actual test of whether the “scandal” is a scandal, it remains unclear whether Tea Party were groups were targeted for specific partisan reasons, or simply because a lot of them were a bit sketchy (their frequent invocation of Hitler comes to mind, as does their opposition to paying taxes).  Now, the IRS may still have incorrectly singled out Tea Party groups for extra scrutiny of their tax-exempt applications.  But unless anyone finds a political motivation – i.e., IRS employees motivated by a hatred of conservatives – the gun ain’t smoking on this one either.

It’s also worth noting that three liberal groups also faced the IRS’ ire.

One more point.  Republicans do themselves no favors by claiming that the IRS story proves that they must repeal and/or undermine Obamacare.  Using a “scandal” for partisan purposes


The AP brouhaha is another matter.  Any time the government attempts to get the media to divulge their sources, red flags should be raised.  It doesn’t mean the government is necessarily wrong. It does mean that people should pay close attention when the government attempts anything like this.

Eavesdropping via Shutterstock

Eavesdropping via Shutterstock

In this case, the Justice Department was investigating the leak of information surrounding a failed Al Qaeda plot.  DOJ did so by getting the phone records for 20 AP employees, specifically looking at who they were calling.

And it was really worse than that.  These weren’t just 20 reporters.  The phone lines covered included AP bureau lines in the US House, New York, Washington and more.  Those phone lines were potentially used by every reporter in the bureau over a period of months that the US government was keeping track.  So this wasn’t just targeted against specific individuals.

Just as troublesome, a judge never approved it. Under the law, arguably, the Justice Department doesn’t need a judge in order to seize your phone records.  They also don’t need to tell you, until long after if ever.  In this case, one of the biggest complaints the AP has is that the government didn’t even come to them to ask for the records, something the law does require.  Sure, AP would have likely challenged the request in court, but then a judge would have decided the case on the merits.  In this instance, the Justice Department decided on its own in secret that the Justice Department had a need for these documents.

And that’s a bit messed up.

Rachel Maddow interviewed David Schulz, a media attorney now representing AP.   Schulz said that there are certain rules the Justice Department is supposed to follow in these kind of investigations.  Those rules include:

  1.  Government can’t go after reporters’ information unless it is “critical” to an investigation.  So they can’t just launch a fishing expedition.
  2. They can only go after it if there are no alternative sources.
  3. They had to make the information request as narrow as possible.
  4.  Government is supposed to negotiate with the press ahead of time.
domestic privacy eavesdropping spying

Eavesdropping via Shutterstock

Schulz says the regulations were simply ignored.  The facts certainly suggest he has a point.  Tagging general phones lines that could impact 100 AP employees doesn’t sound terribly “narrow.”  And the evasion of the requirement of prior notice took away the press’ right to go to court to not just challenge all of this, but to ensure that DOJ was following the rule of law.

As you can imagine, AP is not amused.  The NYT concurred:

For more than 30 years, the news media and the government have used a well-honed system to balance the government’s need to pursue criminals or national security breaches with the media’s constitutional right to inform the public. This action against The A.P., as the Reporters Committee for Freedom of the Press outlined in a letter to Mr. Holder, “calls into question the very integrity” of the administration’s policy toward the press

Blogger Marcy Wheeler has an excellent summary of the background, and the concerns surrounding the government’s actions.

eavesdropping spying privacy

Eavesdropping via Shutterstock

As Rachel Maddow and others have noted, if we had a media shield law, media organizations would have protections, including requiring a judge to sign off on these kind of fishing expeditions into media communications.  But as Buzzfeed notes, Republicans in Congress killed the effort to pass that law.

Rachel Maddow has an excellent discussion of, backgrounder on, this issue with AP’s lawyer Schulz from last night’s show – it’s worth a watch:

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Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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