Wednesday | August 24, 2016
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Who is really helping whom?

Many editorial pages endorsed Barack Obama for president in 2008 in part on the belief that he would fill the executive branch with “3,000 bright, dedicated and accomplished Americans” and that he would listen to them.

Five months into his second term, it’s become obvious that some of the people serving the president couldn’t make the best-and-brightest’s practice squad. This is the kindest interpretation. The unkindest would be that the president is channeling former Vice President Dick Cheney’s expansive view of executive powers.

On top of the political spin the administration put on the news from Benghazi (last week’s story), on top of the decision by IRS investigators to focus on conservative groups seeking tax-exempt status (Monday’s story), now comes Tuesday’s story: The Justice Department decided to issue blanket subpoenas for two months’ worth of records from 20 phone lines used by Associated Press reporters and editors. Fishing trawlers don’t use nets that big.

At issue, apparently, is a story published a year ago that reported that “Over the last three years, al-Qaida bomb makers in Yemen have developed three fiendishly clever devices in hopes of attacking airplanes in the skies above the United States.”

Citing confirmation from “U.S. and Yemeni officials who were briefed on the plot but spoke on conditions of anonymity,” the story revealed that a double-agent masquerading as a suicide bomber delivered a “sophisticated new, nonmetallic underwear bomb” to U.S. and Saudi intelligence agents.

At the administration’s request, the AP held the story for several days before publishing it. The story created consternation both at the White House and among its critics. Republicans cried foul, suggesting that the White House was trying to shore up its national security credentials ahead of the 2012 elections. About this same time, stories leaked that U.S. and Israeli intelligence agencies had managed to plant a “Stuxnet” virus-infected thumb drive inside Iranian nuclear facilities in 2010.

GOP fingers were pointed at John Brennan, then the White House counterterrorism adviser and now director of the CIA. Brennan denied being the source of the leaks.

In June of last year, Attorney Gen. Eric Holder appointed Ronald C. Machen Jr., the U.S. attorney for the District of Columbia, to investigate the leaks. Some time this year, the AP reported Monday, Machen’s office issued the subpoenas to phone companies for its records. The AP was informed about it only Friday.

Under DOJ policy, news agencies must be notified when subpoenas are issued unless disclosure would “post a substantial threat to the integrity of the investigation.” That vague exception is being cited in this case. The attorney general himself must sign off on any subpoenas to news organizations.

In 1979, the Supreme Court ruled that phone records were not protected by the Fourth Amendment’s protection against illegal search and seizure. Authorities need no judicial warrant to obtain them, the court said, because when you dial a phone number, you are giving it up to a third party — the phone company — which can then share it with authorities.

In the AP case, the Justice Department cast a wide net; at best, it would catch one or more reporters having conversations with one or more White House or intelligence agency officials on specific dates. In itself, it would not prove anything.

It would also reveal — according to a letter from the AP’s chief executive to Holder — two months’ worth of “information about AP’s activities and operations that the government has no conceivable right to know.”

The administration has been fierce on leaks. Holder said Tuesday that the double-agent leak had been one of the most serious he’d seen since the 1970s and had “put the American people at risk.”

And the Republicans are right: Whether it was coincidence or not, the double-agent leak and the Stuxnet leak did burnish Obama’s credentials as a terrorist-fighter. In any leaks case, the fundamental issue is who is using whom?

But all of that is beside the point. The issue here is a legal, but overly broad use of nonjudicial subpoenas in a way that could chill the free press. Sometimes it’s hard to remember that Obama used to teach constitutional law.

— From the St. Louis Post-Dispatch


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