Wednesday, May 15, 2013

(Politics) Department of Justice: News of the DOJ targeting AP for spying should be no shock to anybody, especially AP

There has been an uproar across the media with the news of the Department of Justice running a secret investigation on the Associated Press in which the DOJ had  “secretly obtained the phone records of journalists at the wire service’s (AP) news-gathering operations”[1]. The investigation was spurred by a series of ‘damaging’ leaks which led to US Attorney General Eric Holder hiring US attorney Ronald C. Machen Jr.  to investigate the news organisation due to its apparent leak of  “classified information about a foiled terror plot in Yemen”[2].

In light of the public reaction to the secretly conducted investigation into AP, Holder has done his best to deflect responsibility from himself citing the role of his deputy James Cole in signing off on the investigation and his decision to recuse “himself early on in the investigation”[3]. However his efforts to quell the criticism of himself and the DOJ were quashed as AP sought to offer their public response.

AP president Gary Pruitt was less than pleased as he right admonished the DOJ opting to investigate in  secret “rather than talk to us in advance…”[4]. Pruitt was also critical of the usual rationale of “national security” offered by governments when caught red handed when point out that “They (DOJ) say this secrecy is important for national security. It is always difficult to respond to that, particularly since they still haven’t told us specifically what they are investigating”[5].

Republicans in response have made haste in admonishing Holder with Reince Priebus, Head of the RNC, stating the importance of the first amendment and that must be respected[6]. If past events are to count for anything, Holder could face White House pressure to resign as the government was quick to distance itself from Holder and the DOJ  as Whitehouse Press Secretary Jay Carney stated that “president is a strong defender of the first amendment” as if he was speaking in response to Priebus’s remarks[7]. However for all of the talk offered about the violation of the first amendment, what really should be up for discussion is the daily violation of the fourth.

Just last week, the DOJ came in for criticism after a report came to light that the DOJ  and the FBI were of the position that “they don't need a search warrant to review Americans' e-mails, Facebook chats, Twitter direct messages, and other private files”[8]. What this means in practice is that the DOJ and FBI can obtain private information without a warrant and a subpoena is enough “ to obtain nearly "all records from an ISP”[9].

To do this the DOJ  has been flouting a court ruling made three years ago that deemed “warrantless access to e-mail violates the Fourth Amendment” with the FBI instructing its agents that they "may subpoena" e-mail records from companies "without running afoul of" the Fourth Amendment”[10].

While US lawmakers have paid much lip service about doing something about constant violation of the fourth amendment by the DOJ, Congress has largely helped usher in laws that undermine the right to privacy, starting with the still controversial 2001 Patriot Act, which was the brainchild of the DOJ .

While Democratic Senator Mark Udall of Colorado and others has expressed his “concern” regarding the DOJ and the FBI stance and use of “warrantless searches” and the need to make amendments to the 27 year old Electronic Communications Privacy Act, Udall and others had been more scornful of the IRS recent breach of the Fourth Amendment in a signed letter stating their belief that the IRS’s “… actions are a clear violation of the Fourth Amendment's prohibition against unreasonable searches and seizures"[11]

US companies have been more forthcoming with their reservations about the DOJ wanton violation of the Fourth Amendment a number of companies  “including Amazon, Apple, AT&T, eBay, Google, Intel, Microsoft, and Twitter, as well as liberal, conservative, and libertarian advocacy groups” have been asking for changes current laws that ensure that “ law enforcement needs a warrant to access private communications and the locations of mobile devices”[12].

The cruel irony of  the use of warrantless searches and seizure violating the Fourth amendment is that it provides an avenue for the very people used to justify them to weaken the cases prosecuting them. This is happening in a case against two brothers who embarked on a failed terror plot as the evidence against them was obtained “through the National Security Agency’s post-9/11 mass surveillance program” which would be fine if it didn’t mean that the “constitutionality of the NSA’s surveillance methods would be scrutinized”[13]. This has huge ramifications as this can lead to “legal challenges” upon whether the methods used obtain the evidence in question was constitutional triggering appeals to the Supreme Court[14].

In sum, While there has widespread surprise and anger towards Holder and the DOJ, what happened to the Associated press was just the symptom of a much larger cancer that ailed the United States for more than decade and has made a mockery of  the Fourth Amendment. This case bring into play an old but still relevant date between the compromise between liberty and security however a brief study of what has happened over the last decade will make clear for anybody willing to see that this debate has now become obsolete.    

[1] J. C. Timm, 2013, Justice Department seizes journalists’ records,
[2] Ibid
[3] Fox News, 2013, Holder says AP proble handled by deputy after he recued himself,
[4] Ibid
[5] Ibid
[6] Ibid
[7] Ibid
[8] D. McCullagh, 2013, DOJ: We don’t need warrants for e-mail, facebook chats,
[9] Ibid
[10] Ibid
[11] D. McCullagh, 2013, Senators demands DOJ, Fbi seek warrants to read e-mail,
[12] D. McCullagh, 2013, DOJ: We don’t need warrants for e-mail, facebook chats,

[13] N. Lennard, 2013, New York terror suspect case could challenge NSA spying,
[14] Ibid

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