ABA Journal


Constitutional Law

AP complains of ‘massive and unprecedented intrusion’ by DOJ into reporters’ phone records

May 13, 2013, 10:05 pm CDT


Maybe the AP is a terrorist front group.

By B. McLeod on 2013 05 13, 11:27 pm CDT

I wonder if the DOJ obtained the records of any other news organizations in this matter? I can imagine this annoying news rooms from coast to coast.

By Yankee on 2013 05 14, 1:08 am CDT

If only Conservatives had been outraged when the American Public learned how pervasive the Bush II Administration's warrantless wiretapping program was.
The circle of Republican hypocrisy never ends.

By Doodle Dandy on 2013 05 14, 1:34 am CDT

lol at Doodle Dandy if he really thinks the AP are Conservatives. They are so far in the tank for Obama that they need flippers and an aqualung. It's actually kind of funny since they seem to worship Holder. Will they somehow manage to rationalize his behavior here and blame Bush, or Global Warming, or Limbaugh?

By Fred on 2013 05 14, 12:41 pm CDT

It doesn't seem to matter if one has Bush, or Obama, in the White House -- the Establishment's overreaching attacks on basic civil rights is never ending.

Think that was a harsh thing to say? Well, consider this -- the Feds assert that they can drone bomb you, without even having a guardian ad litem defend you in camera from allegations you're a terrorist. No need for a trial, proceed with the execution, all while "terrorism" officially remains a crime rather than an act of war. It's one thing to open fire on Robert E. Lee's Confederate troops, quite another to bomb a bunch of (possibly innocent) people mingling with civilians in a foreign land.

The FBI says it can read your e-mails, no warrant needed... Now we have the Feds dragnet extending to roughly 100 mainline reporters' phone records. Why should that be any surprise, really?

And let's consider the latest Congressional "progressive" measures, the Obamacare drivel (about which Pelosi famously said, you have to pass it to learn what is in it) which will be administered by the IRS. That's the same bunch we now know reeks of partisan politcal vendettas... this time against conservatives, none of whom seem to be terrorists by the way. Next time the IRS will operate against the Left. But, who cares, eh?

Oh, and let's not forget the stealth provision authorizing a computerized biometric identification system for every American, tucked away in the glorious Immigration Reform being rammed through Congress (don't read it! -- just vote for it!) by both Right and Left. More of the same -- it may well be true that there's no Constitutional right to having a false identity, but shouldn't we actually have a national debate about this issue before instituting a national identity system? Or, maybe not. After all, it's easier to complain about American Idol being boring than to consider this stuff.

On and on it goes.

And people wonder why the NRA is paranoid about losing their guns, huh?

In truth, our problem has been that defenders of the Bill of Rights have been Balkanized. We each defend what we hold dear and remain silent when whatever else is threatened. Gee, it doesn't affect me... so who cares?

That's how the enemies of liberty triumph. Divide and conquer.

The Bill of Rights is a single entity. It was all passed simultaneously by a group of radical libertarians we now know as the Founding Fathers. Most likely, if the Bill of Rights were proposed anew today, it would never get through our corrupt processes... which is exactly what the Founders feared.

And they were right to fear what we are becoming.

Will we wake up, finally? Will the rising onset of all these major Obama scandals be enough to wake the public up, to spark a popular demand for a return to Constitutional form of limited government?

Comments and suggestions are welcome.

By SavannahGuy on 2013 05 14, 12:53 pm CDT

Obama didn't start this, dude. He's just the latest in a long series of erosions. Neither side cares about the Constitution. I would wager that what you mean by "Constitution form of limited government" really means "government according to my opinions." "Limited" government doesn't tell women what they can do with their bodies or citizens who can marry whom.

By Anonymous on 2013 05 14, 1:25 pm CDT

The news wires are reporting that law makers from both parties are coming down hard on Holder about this massive and unprecedented intrusion into reporters’ phone records.

And, Yes, the Associated Press is in the tank for Obama.

The important thing here is that Obama has managed to make enemies of his biggest allies: The Establishment Press.

(And from a legal perspective, I would hope that it would take truly extraordinary circumstances to justify an order of this type.)

By Yankee on 2013 05 14, 1:47 pm CDT

Obama doesn't know about political attcks that were required by law to be approved by Eric Holder. It's sad that some people are gullible enough to believe that.

It's even more sad that there are apparently lawyers who seek to excuse crimes with other crimes.

By associate on 2013 05 14, 3:25 pm CDT

What I don't understand is how *this* outrages people who appear to be otherwise fine with all of the Fourth-Amendment-Destroying policies from G.W. Bush that Obama has shamefully continued.

By Anonymous on 2013 05 14, 3:29 pm CDT

Such trashing of the Bill of Rights is precisely why I do not use an AP phone when I talk to another about “Imagining the Death of the King” .

Assuming <i>arguendo</i> that I were to imagine the death of a King , I would perhaps use ƒaceßook.

By Docile Jim Brady – Columbus OH 43209 on 2013 05 14, 3:52 pm CDT

Republicans -- If you're going to happily disregard the FBI's persistent misconduct since the Patriot Act's initial passage in terms of monitoring ordinary folks' mail, emails and phone calls without benefit of a search warrant, you can't now be heard to whine when the FBI does the same to news organizations -- particularly when national security issues are in play.

By AndytheLawyer on 2013 05 14, 3:53 pm CDT



WASHINGTON (AP) — President Barack Obama has signed into law a five-year extension of the U.S. government's authority to monitor the overseas activity of suspected foreign spies and terrorists.

The warrantless intercept program would have expired at the end of 2012 without the president's approval. The renewal bill won final passage in the Senate on Friday.

By Marc on 2013 05 14, 5:06 pm CDT


As a candidate, Senator Obama lamented that the Bush Administration "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of civil court."

Obama's DOJ now claims that the U.S. Government is completely immune from litigation for illegal spying — that the Government can never be sued for surveillance that violates federal privacy statutes.

This is a radical assertion that is utterly unprecedented. No one — not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration — has ever interpreted the law this way.

Previously, the Bush Administration has argued that the U.S. possesses "sovereign immunity" from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government's ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

By Marc on 2013 05 14, 5:09 pm CDT

For once -- and perhaps for the first time -- you're actually right, Marc. Obama has not made good on his promises to undo the damage that Bush did. I wish you'd been just as vociferous and rabid when Bush *did* the damage as you are while Obama is *perpetuating* it.

Sad to say, I think the GOP has really shot itself in the foot with looking for some scandal, any scandal to use against Obama. It has cried wolf and tried to manufacture a scandal so many times that when there actually *is* a big problem, no one will listen anymore.

By Anonymous on 2013 05 14, 5:15 pm CDT

Obama's Military Is Spying on U.S. Peace Groups
July 28, 2009 08:20 PM

Anti-war activists in Olympia, Wash., have exposed U.S. Army spying and infiltration of their groups, as well as intelligence gathering by the U.S. Air Force, the federal Capitol Police and the Coast Guard.

The infiltration appears to be in direct violation of the Posse Comitatus Act preventing U.S. military deployment for domestic law enforcement, and may strengthen congressional demands for a full-scale investigation of U.S. intelligence activities, like the Church Committee hearings of the 1970s.

By Marc on 2013 05 14, 5:22 pm CDT

George Bush is not Presidentmand hasn't been President for a very long time. The question before us concerns practices under the incumbent President.

By Yankee on 2013 05 14, 9:13 pm CDT

Actually, if you were reading, Marc brought up an issue where -- correctly -- Obama can be faulted for perpetuating and worsening unlawful activities sanctioned by Bush.

You shouldn't be surprised to see Bush raised here as a test of whether you responded with similar outrage when comparable or worse activities occurred under Bush.

No, it isn't relevant to Obama. It is, however, relevant to your credibility and therefore the seriousness with which anyone should take your rhetoric and opinions.

By Anonymous on 2013 05 14, 10:11 pm CDT

Would that only the DOJ was getting into our phone records-how about the little communities where the local townies get on your phone (landline or cell) for entertainment and posse surveillance? It's an updated version of listening in on a cb or police scanner-serious privacy issues that would make anyone blush (especially those who've been listened to and didn't know it!)
At least the news came out and the DOJ's actions can be scrutinized legally-the "hills have eyes" groups don't answer to anyone. (They'll get a transcript made up for you, too-cost isn't bad, I hear)

By Deborah Kennedy on 2013 05 14, 10:42 pm CDT


Thank you for pointing out that the circle of conservative hypocrisy never ends.

That being said, there are practical limits on things that any President is made aware of on a daily basis. There are many things that Presidents are not made aware of because those under them want a certain deniability. There are things which no President or their staff reasonably be expected to know.

By Doodle Dandy on 2013 05 14, 11:44 pm CDT


Translation: It's not Obama's fault because he can't be expected to know about the bad stuff. It was Bush's fault because he knew about all of the bad stuff. Except for the stuff he was too dumb to know about, but he should have known about that too.

btw I happily voted for Obama twice and never voted for Bush. I just don't like hypocrisy by either side.

By Hypocrisy? on 2013 05 15, 12:09 am CDT

Give it time. There is evidence Bush knew. We're waiting on the story to come out for Obama.

By Anonymous on 2013 05 15, 12:11 am CDT


Your translation is off. There are things that Reagan/Bush Sr/Clinton/Bush Jr./Obama could not know about and things he did know about.

Reagan, for example, knew about the illegal Iran/Contra activities and should have been impeached for knowingly breaking the law. However, we were living in less shrilly partisan times back then, and the old boy got a pass.

By Doodle Dandy on 2013 05 15, 12:34 am CDT

It is amazing that people get so wrapped up in this partisan wrangling. The "parties" hold hands on all the really significant issues of the day: immigration, bank bailouts, wars, torture, extraordinary rendition, targeted drone strikes and espionage. The divide between "Republican" and "Democrat" is indeed a narrow one, if it exists at all.

By B. McLeod on 2013 05 15, 7:23 am CDT

Very much agreed, Mr./Ms. McLeod. Very much agreed.

By Anonymous on 2013 05 15, 12:59 pm CDT

@SavannahGuy: "It doesn’t seem to matter if one has Bush, or Obama, in the White House—the Establishment’s overreaching attacks on basic civil rights is never ending."

Yes, agreed, and Obama should know better, having been a constitutional law professor. Bush can rightly claim ignorance of the law.

"And people wonder why the NRA is paranoid about losing their guns, huh?"

Guns won’t help, the government has more and bigger guns, and as you noted, authority to kill anyone, anytime by drone attack.

"Will we wake up, finally?"

That depends on whether The People can understand that the U.S. Constitution was in 1789, and it today, essentially a con job to protect the "one percent" at the top.

Are all people created equal? If you believe that, I have a bridge to sell you...

The system is headed for collapse; change will follow naturally. About the only way to hasten change is through economic boycott, see Rosa Parks. More important, what will follow change?

By truth on 2013 05 15, 3:06 pm CDT

No. 25 above, and others --

It does little good to continue hurling epithets at one another. That only perpetuates the Balkanization of the Bill of Rights that I'd commented on above (i.e., we each defend that part of the Bill of Rights which is dear to us and let the rest go... dooming the Republic to the death of the thousand cuts).

Whatever one's views about the Founding Fathers' nobility of character, it is undeniable that the Bill of Rights has had a lasting impact on all of us. If not, Brown vs. Board of Education would never have happened, and neither would Mapp vs. Ohio... the list goes on and on. To say that the Bill is only for the elite is thus to stand Constitutional history on its head. In truth, the Bill of Rights is the common man's (or woman's) best friend, often it's their only friend.

Before we blithely allow the Bill of Rights to be used as political toilet paper by either of the criminal gangs... er, political parties... in Washington, let's try to arouse the public. Surely we can all agree on this much.

Yes, dear Liberals, Obama didn't start the abuse; and, yes, dear Conservatives, he's worsened it badly. But "who is worse" isn't the real issue. They are BOTH guilty.

Can we agree to just try to save our form of limited government before it turns into a totally fascist state, whether on the Left or the Right not really making all that much difference?

By SavannahGuy on 2013 05 15, 5:00 pm CDT

I agree that both sides are heading there. Until recently, I would have said that at least one side was heading there less quickly. Now I'm not so sure.

I don't want to make assumptions about your opinions, and I won't do so here and apologize if I've done it in the past.

But I am very used to hearing "limited government" from the same people who want government to be powerful enough to discriminate against minorities, control who can marry, and control the reproductive rights of women. I'm used to hearing "limited government" from people who really mean "government that can do what I want it to, but not anything I don't want it to." I would offer that such a "limited government" is, in fact, not limited at all and just a smokescreen for "I want my way."

And that is why, I think, some of us react hastily when someone starts talking about "limited government." Not because we object to it in principle, but because we are so used to the principle being co-opted and distorted.

By Anonymous on 2013 05 15, 5:08 pm CDT

@26, epithets? none from me.

@27 Thank you. America never had limited government. It’s earlier limitation, to the extent it was ever actually limited, was due to lack of funding. It costs money to build drones and hire lawyers willing to end-run the constitution.

Limited government should not to be confused with laissez-faire, or limited government regulation, which the banks and powers-to-be love. Under laissez-faire, a government can be unlimited and oppressive, and as you noted, "discriminate against minorities, control who can marry, and control the reproductive rights of women." To that I would add, enslave human beings (chattel slavery) and "extinguish aboriginal title to land", a.k.a. stealing land from the American Indians. Today chattel slavery is prohibited, but "debt slavery" has taken its place.

Economic or debt slavery is more efficient for its masters than the slavery of the Old South. Debt slaves must feed, house and clothe themselves. The debt slave masters, the banks, credit card companies, and even student loan providers, all rely upon the courts and justice system for enforcement of debt. When economic slaves can’t pay back their debt, they are told to get a second job. Or a third job.

Meanwhile, when the well-connected masters of economic slaves get in a financial bind, and bring our economy to the brink of collapse, they call on politicians in Washington, DC for bailouts. Bankers don’t get second or third jobs, they get million-dollar bonuses.

Again, the U.S. Constitution was in 1789, and it today, essentially a con job to protect the "one percent" at the top. All people not created equal.

The only way to have limited government is a government with limited immunity, limited ability to tax, limited judiciary, etc. A limited sovereign. That hope ended with the demise of the First 13th Amendment, or the Missing Thirteenth Amendment, the prohibition of lawyers from holding elected office.

"For 142 years, the federal government has kept a secret: A little-known constitutional amendment, designed to prevent people with "titles of nobility" from holding public office, was ratified in 1819 before being deleted from the document as part of a conspiracy by power-hungry lawyers and bankers. But the original 13th Amendment is technically still on the books; we just don't know it."

By truth on 2013 05 15, 6:46 pm CDT

The Titles of Nobility Amendment would not have prohibited lawyers from holding elected office.

TONA was never ratified by the number of states necessary. Only 12 did. Two others came close, but never fully ratified. Or that's my understanding of the historical facts, anyway.

The article you cited actually describes it as more or less a conspiracy theory...

By Anonymous on 2013 05 15, 6:57 pm CDT

Correct me if I'm wrong, but can't a subpoena issued by DOJ be challenged in court just like every other subpoena? If it was overly broad or unduly burdensome or otherwise illegal, file a motion to quash. There is no constitutional privilege for the press to be free from government attempts to uncover sources of criminal intelligence that I know of.

By NoleLaw on 2013 05 16, 3:14 pm CDT

Democrats don't care if the government violates our rights as long as they can blame the republicans for some other issue.

Funny to see all the liberal progressive people supporting Obama on illegal wiretaps and searches.

By tim17 on 2013 05 16, 3:55 pm CDT

NONE *slap!* OF *slap!* US *slap!* SUPPORT *slap!* THAT! *slap!*

By Anonymous on 2013 05 16, 3:56 pm CDT

@30: "Correct me if I’m wrong"

Not enough time, dude.

By Marc on 2013 05 16, 4:06 pm CDT

@33 - I was addressing lawyers licensed to practice in the U.S., not Quebec. And in fact, a correction would be simple. It would go something like this: "AP could not seek a protective order or an order quashing the subpoena because ______."

You're conflating "time" with "knowledge".

By NoleLaw on 2013 05 16, 4:09 pm CDT

He certainly has time enough to troll people attempting to have legal discussions on here.

By Anonymous on 2013 05 16, 4:10 pm CDT


Thank you for demonstrating that the circle of conservative hypocrisy never ends.

By Doodle Dandy on 2013 05 16, 8:03 pm CDT

What I've learned from this discussion: Bush is still president.

There's a lot of mental gynastics going on here to excuse these crimes.

By associate on 2013 05 17, 2:11 pm CDT

@37 - Issuing an investigative subpoena is criminal?

By NoleLaw on 2013 05 17, 2:13 pm CDT

@37 - On that, I think many of us agree. Obama has failed to make good on his promises of undoing Bush's damage and has, in fact, worsened it.

By Anonymous on 2013 05 17, 2:13 pm CDT

Wow, good to see the usual suspects on here defending the Obama Administration on its gross legal and constitutional violations on the AP scandal as well. I would like to say, well at least you are consistent, but sadly that is the exact opposite of what is true -- how one evaluates the legality of what the administration does apparently depends on whether there's an R or a D. And it is downright hilarious that your best rebuff to Republicans for protesting Obama's numerous constitutional violations is just that when Bush did bad stuff the Repubs didn't protest (which is not true anyway, but whatever). So rather than take the high road, set a good example, and behave based on principles, to set yourselves apart from those awful evil Repubs ... you lower yourselves to their level. I guess you guys just never had parents who told yuo two wrongs don't make a right? Classic.

P.S. to Savannah Guy -- I agree w/ everything you've said, and kudos for the effort.

By Just Some Bloke on 2013 05 17, 5:36 pm CDT

@40 - Can you please explain what were the gross legal and constitutional violations in the AP matter that you refer to? That would be a good starting point for a reasonable discussion on this topic.

Various posters (conservative, liberal, and other) have legitimately pointed out that there is too much recrimination and not enough discussion of issues on this site. So let's have that discussion. What is the scandal in this case?

By NoleLaw on 2013 05 17, 5:43 pm CDT

What I glean from the above is that Republicans want everything declassified and made public through the media, regardless of any negative impact on national security, the war effort, or America's economic stability.

In short, conservative Republicans have become libertarian hippies.

This is what comes of bogarting that joint..........

By AndytheLawyer on 2013 05 17, 9:23 pm CDT

won't the AP just move toward disposable cell phones and swapping out numbers all the time?

it's definitely creepy, but it doesn't seem like the Free Press cannot survive....

By defensive lawyer on 2013 05 20, 10:04 pm CDT

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