Justice Dpt. seizes AP Phone Records, then sends Subpoena

[Rawedge Rim]

The FISC reviews all activity and issues warrants. The judicial branch is culpable here. To the extent that any warrants are too open-ended or too wide-ranging, they sign off on them. To the extent that any use of this ability isn't granted by the legislation, they sign off on that.

FISC?

Foreign Intelligence Surveillance Court. The court that is secretly providing warrants for the intelligence-gathering under the Patriot Act. The court whose court order for Verizon to release records was leaked. [link]

That's FISA "Foreign Intelligence Surveillance Act". And let's see, it's been submitted something like 179,000 requests for warrants, and it's turned down exactly "ZERO".

Is someone trying to tell me that no a single request was so vague or not worded well that it was refused? I doubt there is a single DA's office in the country with that good a record.

[Hashi Lebwohl]

Lame duck Presidents are immune to political pressure--they will never seek reelection so it won't matter what the political opponents say.

No. Courts have that authority. They just don't have it unless a case is brought by proper litigants and those litigants are seeking the proper remedies from the Court. The Court cannot act independant of a case and controversy. For example the Supreme Court cannot, without a litigant bringing a case, order the President to stop the searches under the powers granted him in the Patriot Act. However, it can do so if a litigant directly affected by the PA brings a case seeking such a remedy.

In that case, power that is usable only if the right people do the right things in the right order is no power whatsoever. If I have bought enough Members of Congress to pass my law then someone seeks to challenge my law in a court, all I have to do is arrange a car accident for them and now there is no case so my law stays on the books.

Maybe if Courts could be a little more active in making sure our laws adhere to the letter and spirit of the Constitution we wouldn't have things like the Patriot Act, which was legislation passed under emotional stress rather than logic.

[wayfriend]

Lame duck Presidents are immune to political pressure--they will never seek reelection so it won't matter what the political opponents say.

Uh .... Obama doesn't care which party gets the oval office after him? Or about anyone who does care? You make incredible claims.

Maybe if Courts could be a little more active in making sure our laws adhere to the letter and spirit of the Constitution

"Checks and Balances" means that the Courts are checked and balanced, too.

[Hashi Lebwohl]

Uh .... Obama doesn't care which party gets the oval office after him? Or about anyone who does care? You make incredible claims.

So it is more important to be reelected or to make sure that someone from your party gets elected after you than it is to do what is actually best for this country? Politics is more important than personal liberty? That is an incredible claim.

I didn't mention Obama, anyway. I mentioned "lame duck Presidents". Of the 8 Presidents who have been in office during my lifetime, 4 of them have been two-termers. Well, technically it is 5 but Nixon quit through part of his second term.

I am not arguing for activist courts. Rather, I am merely wondering about the overly checked power of the courts. It seems as if their checks are more strict than those of the other two and that seems...unbalanced.

[Cail]

The FISC reviews all activity and issues warrants. The judicial branch is culpable here. To the extent that any warrants are too open-ended or too wide-ranging, they sign off on them. To the extent that any use of this ability isn't granted by the legislation, they sign off on that.

FISC?

Foreign Intelligence Surveillance Court. The court that is secretly providing warrants for the intelligence-gathering under the Patriot Act. The court whose court order for Verizon to release records was leaked. [link]

Gotcha. I've always heard it referred to as a "FISA Court". The problem with them is that they've become a virtual rubber stamp for whatever the requesting alphabet agency requests.

[Cybrweez]

Earlier I posted Obama debating himself. Now, here's Biden calling out himself and Obama.

[SerScot]

Wayfriend,

"Checks and Balances" means that the Courts are checked and balanced, too.

Well said.

Hashi,

What you are not seeing is the broad latitude Courts have in crafting remedies in the cases before them. The preminary inquiries I list up thread are the limits on Court's power. Once the case is in a the hands of the Court with lower courts only two things limit their authority, a ruling that is "arbitrary and capricious" can be overturned by a higher court; a Judge may be impeached and removed from office if too many of these rulings issue; with State and the US Supreme Court the only limitations on a case they are hearing is the threat of impreachment.

To give you an idea of how difficult impeachment and removal can be in SC our Chief Justice has been in two hit and run accidents one involving alcohol and is still in office.

[Zarathustra]

Since the other thread is locked, and all these government abuses are starting to blur together anyway, I'll put this here:

...

There are many, many reasons to be concerned about the rise of the surveillance state, even if you have nothing to hide. Or rather, even if you think you have nothing to hide. For those confronted by such simplistic arguments, here are a three counterarguments that perhaps might get these people thinking about what they’re actually giving up.

1. Every American Is Probably a Criminal, Really

That Americans think they have nothing to hide in the first place is a sign of how little attention they're paying to the behavior of our Department of Justice. Many Americans have run afoul of federal laws without even knowing it. Tim Carney noted at the Washington Examiner:


Copy a song to your laptop from a friend's Beyonce CD? You just violated the Digital Millennium Copyright Act. Did you buy some clothes in Delaware because they were tax free? You're probably evading taxes. Did you give your 20-year-old nephew a glass of wine at dinner? Illegal in many states.

Citizens that the federal government wants to indict, the federal government can indict if it monitors them closely enough. That's why it's so disturbing to learn that the federal government doesn't need to obtain a warrant on us in order to get our emails and phone records.

Attorney Harvey Silverglate even wrote a book about it, Three Felonies a Day: How the Feds Target the Innocent. The Department of Justice has been notably and egregiously using federal laws to destroy lives. Former Tribune employee Matthew Keys is facing federal charges and possibly prison time because he gave his old password to a member of Anonymous, who changed a headline at the website for the Los Angeles Times. The vagueness of the Computer Fraud and Abuse Act makes violating a website’s terms of service a possible felony. We’re not just referring to government websites. All websites. Given the digital focus of the PRISM program, everybody should be concerned about what could potentially happen should that data end up in the hands of federal prosecutors.

The “nothing to hide” crowd's involvement in political activism is likely limited. That’s perfectly fine. Nobody should feel obligated to join the Occupy movement or a Tea Party organization or be the kind of person who might end up on a politician’s enemies list. But to say “I have nothing to hide” is a fundamentally selfish declaration. What about parents, sisters, brothers, partners, and other loved ones? Can we say the same for them? You don’t have to have an illness whose suffering can be eased with the use of medical marijuana to be concerned about the way the federal government treats this industry. Would you say, “I don’t need medical marijuana so I don’t care if they imprison those who do”? Sadly, some people do. Fundamentally, saying “I have nothing to hide,” is similar to saying “I don’t care about those who do.”

2. The Federal Government Has Abused its Surveillance Powers Before

While most Gen Xers were still very young and before any Millennials were born America went through similar controversies in the wake of the Vietnam War and the Watergate Scandal. In 1975, Senator Frank Church (D-Idaho) put together a committee (which would eventually be known as the Church Committee) to investigate abuses of the law by intelligence agencies. Abuses included spying on leftist activists, opening and reading private mail, and using the IRS as a weapon. Sound familiar? There’s a reason why Baby Boomers have started comparing Barack Obama to Richard Nixon. The value of doing so has been lost to the ages; everything politically awful that happens in America is compared to Tricky Dick.

The defense that the current secret NSA/PRISM data collection plan can only target foreigners in foreign territory shouldn’t settle anything, even if it’s actually true, because that’s just a description of how the plan is currently being used, not how it might be used tomorrow or under the next presidential administration. And we have absolutely no way of knowing that the description of how the program operates is true anyway, because the oversight has been hidden from public view. We do know that a court ruling in 2011 determined that the U.S. government had engaged in unconstitutional behavior in its surveillance program, but the Department of Justice is trying to block Americans from seeing this court ruling and understanding what happened. We’re supposed to trust this oversight. We know they’ve broken the law once, but we don’t know what they did, what's stopping it from happening again, what harm was caused, and whether there was any sort of punishment or discipline.

3. Government Is Made of People, and Some People Are Creepy, Petty, Incompetent, or Dangerous

Gilberto Valle had an unusual sexual fetish. He fantasized about kidnapping, killing, and eating young women.

Valle was also a member of the New York Police Department, and was convicted in March of plotting to make his fantasies a reality. Whether he really meant to do so is up in the air (his defense was that this was all sexual roleplay), but he was also convicted of looking up his potential targets in a national crime database, accessible due to his position of authority.

While the federal government is arguing that all this massive metadata being collected by the National Security Agency is subject to significant oversight and not subject to abuse, it is at the same time trying to blame the IRS targeting political and conservative nonprofits for special questioning as the actions of rogue employees and poor management.

You don’t have to be a privacy purist to be concerned about bad or dangerous people getting information about you. Some of them work for the government, and they may be interested in you for reasons that have nothing to do with politics. Even if you have nothing to hide.

link

If you skim the rest, the last bolded paragraph is the most important point, in my opinion. We're supposed to think the government is watching itself, but as soon as any scandal breaks, the first thing they claim is that they didn't know. So much for oversight, self-monitoring and checks/balances.

[Hashi Lebwohl]

Hashi,

What you are not seeing is the broad latitude Courts have in crafting remedies in the cases before them.

I blame my mathematics and computer science training. That tends to put me in a "fix the problem immediately" mode and this translates into how I view courts. That being said, I also believe that if solution A solves the problem but later on solution B is found then A is abandoned in lieu of B.

[SerScot]

Hashi,

I understand where you are coming from, however, creating a limited Representative Democratic government that is watched by a panel of 9 people who have unlimited power to "fix" what they perceive as errors by the Elected branches of Government is not a good plan.

[Cail]

I understand where you are coming from, however, creating a limited Representative Democratic government that is watched by a panel of 9 people who have unlimited power to "fix" what they perceive as errors by the Elected branches of Government is not a good plan.

Right, that's a Star Chamber, and I'm pretty sure we don't want that.

[Vraith]

I understand where you are coming from, however, creating a limited Representative Democratic government that is watched by a panel of 9 people who have unlimited power to "fix" what they perceive as errors by the Elected branches of Government is not a good plan.

Right, that's a Star Chamber, and I'm pretty sure we don't want that.

That's true, we don't.
OTOH, how many significant problems do we have that are caused by the fact that such a tiny portion of executive and legislative action ever gets reviewed by the courts at all?
Right now, I'd say it is a helluva pile.
There is a mechanism to counter Court overreach...
But it was always a slogging process, and district line manipulations have pulled almost all its teeth [IIRC, a handful of districts covering 13% of the population can stop it dead].

[Hashi Lebwohl]

I understand where you are coming from, however, creating a limited Representative Democratic government that is watched by a panel of 9 people who have unlimited power to "fix" what they perceive as errors by the Elected branches of Government is not a good plan.

Right, that's a Star Chamber, and I'm pretty sure we don't want that.

Both very good points. It is simply a shame that we have the opposite problem right now--a panel of 9 people who can do nothing but stand idly by while the Constitution is deconstructed and watered down into toilet paper. I will agree that there is no quick or easy solution that may morph into a worse problem later on.

[Avatar]

Right, that's a Star Chamber, and I'm pretty sure we don't want that.

Hahaha, see my post in the Verizon thread.

--A

[Cail]

Still at it....

Obama Continues Reign as Abusive Husband of American Media

At a conference on media coverage of national security issues in New York, New York Times reporter James Risen called the Obama administration “the greatest enemy of press freedom that we have encountered in at least a generation.” He would certainly know. The Department of Justice is trying to force him to reveal whether a former CIA official is a source of classified information he used in a book. The CIA agent, Jeffrey Sperling, is one of seven Americans the Obama administration has charged under the Espionage Act of 1917.

The Nixonification of the administration on free press issues is not exactly new news. As usual, I’m left wondering why journalists are surprised that an administration that wants to control so much of Americans’ lives with health care mandates and an omnipresent framework of executive branch regulation also wants to control them. Were they really, truly surprised that they would be included among that which the Obama administration seeks to manhandle into compliance? Risen added the media has been “too timid” in responding. Maybe it’s because other media outlets aren’t being affected? To put a cynical spin on it, the media has largely been fine with the expansion of executive branch power under Barack Obama except when it affects the media. While there’s an increasing interest in media scrutiny of national security issues, it’s still a small portion of what the media does. If many media outlets’ concerns about executive power are based only on self-interest, then those who aren’t involved in security reporting might not care what happens to guys like Risen.

And then there’s also the “working the ref” angle Reason’s Matt Welch noted last year when looking at the media’s failure to adequately critique the Affordable Care Act before the whole thing went into effect and immediately crashed and burned. Our media is often just as thin-skinned about criticism as our president is rumored to be. And the surest way to put the media on the defensive is to accuse it of unfairness and of being manipulated. Example: Note how intelligence officials claim the media doesn’t truly understand the information Edward Snowden is leaking and is misreporting, even though the facts of the documents Snowden has provided have not been disproven. But because of the pressure of this response from the intel community, the media feels compelled to pass along any claim that NSA metadata surveillance has helped prevent terrorist attacks, despite the lack of any evidence that the claim is at all true.

In other news about the relationship between government and media, obviously whenever a government official claims they will put policies or laws into place that preserve media freedom, it should immediately be treated as likely nonsense. After the Department of Justice revealed it had gotten secret subpoenas to gather the phone records of several Associated Press reporters to try to find a leak, the agency detailed new guidelines for behavior. The stated intent was to clarify and reduce situations where officials can demand records from journalists. Unfortunately, the policy gives the Department of Justice clearance to make decisions based on what it classifies as “ordinary newsgathering,” which is not a distinction the government should be allowed to make. The DOJ also needs to believe that there are “reasonable grounds” that a crime has occurred, which is almost no protection at all from a government that is using an espionage law to try to convict leakers. When a government operates in an environment where it believes a crisis is an opportunity to expand its reach, there’s a corollary: Treat every problem like a crisis. No doubt the DOJ will be able to manufacture “reasonable grounds” whenever it feels it needs to.

And that leads to the proposed federal shield law, which would help protect journalists from having to reveal sources to the federal government, mimicking the new DOJ policy. Except, again, it’s full of all sorts of exceptions. All the feds have to do is convince a judge that the information is national security issue and the protection for journalists collapses. It also allows the feds to keep the delay in notifying media outlets that their records were taken if they believe notification would impair their investigations, which it almost always certainly would, so what happened to the Associated Press will likely happen again. Sen. Chuck Schumer (D-N.Y.) said he thinks he has the votes to get the shield law through the Senate, but there’s little reason to trust that adding one more judge to the mix will provide any better oversight.

[Cail]

Supreme Court Rejects Appeal From Reporter Over Identity of Source

The Supreme Court on Monday turned down an appeal from James Risen, a New York Times reporter facing jail for refusing to identify a confidential source.

The court’s one-line order gave no reasons but effectively sided with the government in a confrontation between what prosecutors said is an imperative to secure evidence in a national security prosecution and what journalists said is an intolerable infringement of press freedom.

The case arose from a subpoena to Mr. Risen seeking information about his source for a chapter of his 2006 book “State of War.” Prosecutors say they need Mr. Risen’s testimony to prove that the source was Jeffrey Sterling, a former Central Intelligence Agency official.

The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ordered Mr. Risen to comply with the subpoena. Mr. Risen has said he will refuse.

The Obama administration has sent mixed signals in the case and on the subject of press freedom in general. In its Supreme Court brief in the case, Risen v. United States, No. 13-1009, it told the justices that “reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by confidential sources.”

But Attorney General Eric H. Holder Jr. hinted last week that the Justice Department might choose not to ask the trial judge to jail Mr. Risen for contempt should he refuse to testify.

The Obama administration has pursued leaks aggressively, bringing criminal charges in eight cases, compared with three under all previous administrations combined.

At the same time, the administration has supported efforts in Congress to create a federal shield law that would allow judges to quash some subpoenas to journalists. The Justice Department has also issued new internal regulations limiting the circumstances in which prosecutors can subpoena reporters’ testimony and records.

The Supreme Court has not directly addressed whether journalists have protections from subpoenas since its 1972 ruling in Branzburg v. Hayes. In that 5-to-4 decision, the court ruled that the First Amendment provided no such protection against grand jury subpoenas.

Justice Lewis F. Powell Jr. joined the majority but also wrote a short, cryptic concurrence calling on judges to strike the “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony.”

For decades, press lawyers had considerable success in persuading courts to interpret the concurrence broadly. That run of victories started to wane in 2003, when Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago, surveyed the legal landscape.

“A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege,” he wrote.

The case against Mr. Sterling concerns Operation Merlin, a C.I.A. plan to sabotage Iranian nuclear research by having a Russian scientist sell flawed blueprints to Iran. A chapter of Mr. Risen’s book described the operation.

In 2011, Judge Leonie M. Brinkema largely quashed the subpoena to Mr. Risen. “A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” she wrote, adding that prosecutors could prove their case against Mr. Sterling without Mr. Risen’s testimony.

A divided three-judge panel of the Fourth Circuit reversed, relying on the Supreme Court’s Branzburg decision.

[Hashi Lebwohl]

On the one hand, journalists should be able to protect their confidential sources--sometimes whistleblowers are the only way we ever find out that something bad is happening, or has been happening, and needs to stop. If people know their name will be on the front page they may not come forward when they need to. On the other hand, if a journalist doesn't reveal their source then we are forced to take their word for it--for all we know, "John Doe who spoke on condition of anonymity" could be "I made this shit up last night just to meet my editor's deadline"

All things considered, I would err on the side of allowing journalists to protect the identities of their confidential sources and thus preserve the protection needed for whistleblowers, even if revealing the source could help stop some wrongdoing. Although not outside the realm of possibility, I am of the opinion that journalists are far less likely to lie to us than the government is.

[Cail]

Letter urges President Obama to be more transparent

President Barack Obama
The White House
Washington, D.C
July 8, 2014

Mr. President,

You recently expressed concern that frustration in the country is breeding cynicism about democratic government. You need look no further than your own administration for a major source of that frustration – politically driven suppression of news and information about federal agencies. We call on you to take a stand to stop the spin and let the sunshine in.

Over the past two decades, public agencies have increasingly prohibited staff from communicating with journalists unless they go through public affairs offices or through political appointees. This trend has been especially pronounced in the federal government. We consider these restrictions a form of censorship -- an attempt to control what the public is allowed to see and hear.

The stifling of free expression is happening despite your pledge on your first day in office to bring “a new era of openness” to federal government – and the subsequent executive orders and directives which were supposed to bring such openness about.

Recent research has indicated the problem is getting worse throughout the nation, particularly at the federal level. Journalists are reporting that most federal agencies prohibit their employees from communicating with the press unless the bosses have public relations staffers sitting in on the conversations. Contact is often blocked completely. When public affairs officers speak, even about routine public matters, they often do so confidentially in spite of having the title “spokesperson.” Reporters seeking interviews are expected to seek permission, often providing questions in advance. Delays can stretch for days, longer than most deadlines allow. Public affairs officers might send their own written responses of slick non-answers. Agencies hold on-background press conferences with unnamed officials, on a not-for-attribution basis.

In many cases, this is clearly being done to control what information journalists – and the audience they serve – have access to. A survey found 40 percent of public affairs officers admitted they blocked certain reporters because they did not like what they wrote.

Some argue that controlling media access is needed to ensure information going out is correct. But when journalists cannot interview agency staff, or can only do so under surveillance, it undermines public understanding of, and trust in, government. This is not a “press vs. government” issue. This is about fostering a strong democracy where people have the information they need to self-govern and trust in its governmental institutions.

It has not always been this way. In prior years, reporters walked the halls of agencies and called staff people at will. Only in the past two administrations have media access controls been tightened at most agencies. Under this administration, even non-defense agencies have asserted in writing their power to prohibit contact with journalists without surveillance. Meanwhile, agency personnel are free speak to others -- lobbyists, special-interest representatives, people with money -- without these controls and without public oversight.

Here are some recent examples:

• The New York Times ran a story last December on the soon-to-be implemented ICD-10 medical coding system, a massive change for the health care system that will affect the whole public. But the Centers for Medicare and Medicaid Services (CMS), one of the federal agencies in charge of ICD-10, wouldn’t allow staff to talk to the reporter.

• A reporter with Investigative Post, an online news organization in New York, asked three times without success over the span of six weeks to have someone at EPA answer questions about the agency's actions regarding the city of Buffalo’s alleged mishandling of “universal waste” and hazardous waste.

• A journalist with Reuters spent more than a month trying to get EPA’s public affairs office to approve him talking with an agency scientist about the effects of climate change. The public affairs officer did not respond to him after his initial request, nor did her supervisor, until the frustrated journalist went over their heads and contacted EPA’s chief of staff.

The undersigned organizations ask that you seek an end to this restraint on communication in federal agencies. We ask that you issue a clear directive telling federal employees they’re not only free to answer questions from reporters and the public, but actually encouraged to do so. We believe that is one of the most important things you can do for the nation now, before the policies become even more entrenched.

We also ask you provide an avenue through which any incidents of this suppression of communication may be reported and corrected. Create an ombudsman to monitor and enforce your stated goal of restoring transparency to government and giving the public the unvarnished truth about its workings. That will go a long way toward dispelling Americans’ frustration and cynicism before it further poisons our democracy.

Further examples on the issue are provided as well as other resources.

Sincerely,

David Cuillier
President
Society of Professional Journalists
spjdave@yahoo.com

Beth Parke
Executive Director
Society of Environmental Journalists
bparke@sej.org

Kathryn Foxhall
Member
Society of Professional Journalists
kfoxhall@verizon.net

Holly Spangler
President
American Agricultural Editors’ Association

Gil Gullickson
Board Chair
American Agricultural Editors’ Association Professional Improvement Foundation

Alexandra Cantor Owens
Executive Director
American Society of Journalists and Authors

Janet Svazas
Executive Director
American Society of Business Publication Editors

David Boardman
President
American Society of News Editors

Hoda Osman
President
Arab and Middle Eastern Journalists Association

Kathy Chow
Executive Director
Asian American Journalists Association

Diana Mitsu Klos
Executive Director
Associated Collegiate Press

Paula Poindexter
President
Association for Education in Journalism and Mass Communication

Miriam Pepper
President
Association of Opinion Journalists

Lisa Graves
Executive Director
Center for Media and Democracy

Rachele Kanigel
President
College Media Association

Gay Porter DeNileon
President
Colorado Press Women

Sue Udry
Executive Director
Defending Dissent Foundation

Mark Newton
President
Journalism Education Association

Mark Horvit
Executive Director
Investigative Reporters and Editors

J.H. Snider
President
iSolon.org

Phyllis J. Griekspoor
President
North American Agricultural Journalists

Carol Pierce
Executive Director
National Federation of Press Women

Robert M. Williams Jr.
President
National Newspaper Association

Bob Meyers
President
National Press Foundation

Charles Deale
Executive Director
National Press Photographers Association

Diana Mitsu Klos
Executive Director
National Scholastic Press Association

Mary Hudetz
President
Native American Journalists Association

Jane McDonnell
Executive Director
Online News Association

Patrice McDermott
Executive Director
OpenTheGovernment.org

Tim Franklin
President
The Poynter Institute

Danielle Brian
Executive Director
Project on Government Oversight

Jeff Ruch
Executive Director
Public Employees for Environmental Responsibility

George Bodarky
President
Public Radio News Directors Incorporated

Mike Cavender
Executive Director
Radio Television Digital News Association

Herb Jackson
President
Regional Reporters Association

Christophe Deloire
Secretary General
Reporters without Borders

Frank LoMonte
Executive Director
Student Press Law Center

Roy S. Gutterman
Director
Tully Center for Free Speech at Syracuse University

David Steinberg
President
UNITY Journalists for Diversity

[sindatur]

Yea, but, if the News can't report on stuff, The President can't find out about it through the News, just like everyone else.

We're depriving the President of a vital source of knowledge

[Cail]

Yea, but, if the News can't report on stuff, The President can't find out about it through the News, just like everyone else.

We're depriving the President of a vital source of knowledge

#winning