THE BLOG
05/16/2013 11:25 pm ET | Updated Jul 16, 2013

The AP 'Scandal': The Straight Scoop

AP

We've read a lot lately about the AP "scandal." In short, on May 7, 2012, the Associated Press released a story that disclosed classified details of a CIA operation in Yemen that prevented an airliner bombing around the anniversary of the killing of Osama bin Laden.

In an effort to determine the identity of the government employee who leaked the classified information to the AP, the Justice Department, after conducting an extensive investigation without success, subpoenaed from the AP's phone company the records for more than twenty telephone lines used by the AP and its journalists. The hope was that, by examining the incoming and outgoing phone numbers, it could identify the leaker and prevent him or her from releasing additional classified information in the future.

According to the media (to say nothing of Republicans and Fox News), in pursuing this investigation the Obama administration brutalized the Constitution and flagrantly violated the law. The hysteria of the media's response is predictably self-involved and self-interested and the reaction of Republicans is predictably hypocritical.

Let me say at the outset that I am a card-carrying member of the ACLU, a strong proponent of press freedom and a staunch believer in both a robust First Amendment and a vibrant Fourth Amendment. But I also care about rational public discourse, and the furious condemnation of the Department of Justice in this situation is way over the top.

The Fourth Amendment prohibits "unreasonable searches and seizures." Almost forty years ago, in a regrettable decision, the conservative justices on the Burger Court held that individuals have no "reasonable expectation of privacy" in information we voluntarily reveal to third parties. The Court therefore held that for the government to obtain our financial records from our bank, or our phone records from our phone company, is not an "unreasonable search or seizure" within the meaning of the Fourth Amendment.

This understanding of the Fourth Amendment is regrettable because it ignores the reality that in the modern world we often, as a matter of practical necessity, expose what we quite reasonably regard as private information to third parties, such as banks, Internet providers and phone companies. That we reveal such information to those entities does not in any way suggest that we are indifferent to the privacy of the information.

Nonetheless, that is the prevailing interpretation of the Fourth Amendment and there is no possibility that the current conservative majority on the Supreme Court will change it. Thus, the subpoena of AP phone records from the phone company does not violate the Fourth Amendment.

The First Amendment prohibits government to abridge the "freedom of the press." Does it violate the First Amendment for the government to gather information about the AP's phone records? The media argue that because this action will reveal the identity of confidential sources, it abridged "the freedom of the press."

Forty years ago, in another regrettable decision, the conservative justices on the Burger Court held that the government can constitutionally require reporters to disclose the names of confidential sources. The Court held, in effect, that the "freedom of the press" does not give members of the press any special rights not enjoyed by other individuals.

Although the government cannot constitutionally discriminate against the press (for example, by charging higher sales taxes for newspapers than for other products), the Court held that if other individuals can be compelled to disclose information relevant to law enforcement, then journalists can be compelled to do so as well.

This understanding of the First Amendment is regrettable because there are clearly circumstances in which the government should be constitutionally required to recognize and respect the distinctive harm its investigations might have on our ability to preserve a vibrant, robust public discourse. But, because of the settled state of First Amendment law on this question, it is clear that the Department of Justice's action did not violate the First Amendment (despite the outraged complaints of the media).

In short, then, nothing the Department of Justice did in this investigation violated the Constitution as currently understood. Nor did anything it did violate federal law. Although proposals to enact legislation restricting the ability of the government to compel the disclosure of information about the identity of confidential sources -- a so-called "Shield Law" -- have been presented repeatedly in Congress over the past decade, Republican lawmakers have consistently -- and shamefully -- blocked such legislation on the theory that it might weaken the national security. Thus, it is also clear that the Department of Justice's use of a subpoena to require the phone company to turn over the call records of the AP did not violate any federal law.

Legally, then, the Department of Justice could constitutionally and legally have sought the phone records of the AP at any time and in any manner it pleased. As a measure of good government, though, since Watergate, the Department of Justice has acted with self-restraint. For the past forty years, the Department has imposed upon itself specific, voluntary limitations on when it will exercise its lawful authority to ascertain the identities of confidential sources.

Thus, as set forth explicitly in Department of Justice regulations, the Department, "in recognition of the importance of freedom of the press to a free and democratic society," has promulgated regulations providing that "the prosecutorial power of the Government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues." These regulations provide that the Department will not subpoena the phone records of a member of the news media unless certain conditions are satisfied, including

(a) balancing in each instance "the public's interest in the free dissemination of ideas and information with the public's interest in effective law enforcement,"

(b) "taking all reasonable steps to attempt to obtain the information through alternate sources or means,"

(c) fashioning the subpoena "as narrowly as possible to obtain the necessary information in a manner as minimally intrusive and burdensome as possible," and

(d) negotiating "with the affected media" before resorting to a subpoena "unless such negotiations" might "pose a substantial threat to the investigation."

Although these regulations are, in my view, insufficiently protective of the interests of a free press, they are as protective as the Department of Justice has ever been, and they are more protective than either the Constitution (as interpreted by conservative justices) or federal law requires.

It is, of course, possible that the Department of Justice did not comply with its own regulations in the AP investigations. Perhaps the subpoena could have been more narrowly drawn. Perhaps the Department should have negotiated with the AP before issuing the subpoena. I do not have sufficient information to speculate about these issues, but nor do the media. What is clear, though, is that the overblown claims that this investigation is some huge "scandal" that threatens the very foundations of our free society are nothing short of absurd.