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, http://www.foxnews.com/politics/2013/05/14/holder-recuses-himself-from-doj-probe-associated-press-phone-records/
[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, http://news.cnet.com/8301-13578_3-57583743-38/senator-demands-doj-fbi-seek-warrants-to-read-e-mail/
[13]
N. Lennard, 2013, New York terror suspect case could challenge NSA spying, http://www.salon.com/2013/05/13/new_york_terror_suspect_case_could_challenge_nsa_spying/singleton/
[14]
Ibid
