The Government's Party Line

A federal law enforcement official inside the Bush administration told two reporters at ABC News that the government is looking at ABC News' call records in an attempt to identify confidential sources. ABC News posted this story on their in-house blog, and also sent it out as a press release to news organizations, according to Raw Story:

A senior federal law enforcement official tells ABC News the government is tracking the phone numbers we (Brian Ross and Richard Esposito) call in an effort to root out confidential sources.

"It's time for you to get some new cell phones, quick," the source told us in an in-person conversation.

ABC News does not know how the government determined who we are calling, or whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls.

Other sources have told us that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post, are being examined as part of a widespread CIA leak investigation.

One former official was asked to sign a document stating he was not a confidential source for New York Times reporter James Risen.

Our reports on the CIA's secret prisons in Romania and Poland were known to have upset CIA officials. The CIA asked for an FBI investigation of leaks of classified information following those reports.

People questioned by the FBI about leaks of intelligence information say the CIA was also disturbed by ABC News reports that revealed the use of CIA predator missiles inside Pakistan.

Under Bush Administration guidelines, it is not considered illegal for the government to keep track of numbers dialed by phone customers.

Georgia10 over at Daily Kos looked into some of the case law on the confidentiality of journalists' telephone contacts:

In New York Times Co. v. Gonzales, 382 F.Supp.2d 457 (S.D.N.Y. 2005), the New York Times sought a declaratory judgment to protect the telephone records of two of its reporters, Judith Miller and Philip Shenon. Miller and Shenon had written articles in the aftermath of September 11th detailing how the government planned to block assets and search the offices of two Islamic charities.

Patrick Fitzgerald wanted to know who leaked this information. He argued that Miller and Shenon's reporting tipped off the charities to the searches and increased the likelihood that evidence and assets were destroyed or concealed. As part of his investigation into the leak, he requested that Miller and Shenon voluntarily produce their phone records. They refused and eventually filed the lawsuit to determine whether their phone records were protected.

Judge Sweet ruled that indeed the phone records in that case were "protected by the qualified reporters' privilege for confidential sources, which exists pursuant to the First Amendment and federal common law." The government in that case was unable to overcome that privilege, so it could not have access to the phone records. You can read the Washington Post article about the decision here.

Now, of course, journalists were compelled to disclose their sources in the Plame investigation, where the court ruled that the government's interest outweighed whatever interest Miller and Cooper had in protecting their sources. However, as Judge Sweet pointed out, when it comes to phone records, all of a journalist's confidential sources, even those wholly unrelated to the investigation, can be exposed. Not to mention that the privacy of the individual reporter is implicated.

In any event, the fact remains that the protection of a reporter's phone records has been and should be within the purview of the judicial branch, where the government can set forth evidence as to why it requires access and reporters can counter with the implications of granting that access. With the ABC News revelation, though, it is unclear whether the government even went through the proper legal channels to access the phone records.

Josh Marshall thinks most Americans would be willing to cut the government some slack on this -- if this particular administration had not proved many times over that they have no respect for the law, or for checks and balances:

I think many people are probably willing to be open-minded, for better or worse, on pushing the constitutional envelope. But given the people in charge of the executive branch today, you just can't have any confidence that these tools will be restricted to targeting terrorists. Start grabbing up phone records to data-mine for terrorists and then the tools are just too tempting for your leak investigations. Once you do that, why not just keep an eye on your critics too? After all, they're the ones most likely to get the leaks, right? So, same difference. The folks around the president don't recognize any real distinctions among those they consider enemies. So we'd be foolish to think they wouldn't bring these tools to bear on all of them. Once you set aside the law as your guide for action and view the president's will as a source of legitimacy in itself, then everything becomes possible and justifiable.

Maha, as usual, manages to get right to the heart of the issue and make me laugh out loud simultaneously:

Josh Marshall asks, "Isn't this the other shoe dropping?" But in fact, we've had a whole warehouse full of shoes drop already. Some people aren't going to be concerned until the whole bleeping warehouse lands on their thick little heads.

John Cole sees this as just the latest example of conservatives betraying their own small government philosophy:

It will forever amaze me how quickly rightwingers switched from the argument that government can never be trusted with too much power to the argument that we should trust government with expanded powers because they would never abuse it, practically without batting an eyelash. People explained the sudden change of heart with the excuse that "9/11 changed everything," which is transparent bullshit. ...

I suppose that we should be grateful for the current batch of leaders in DC.
If they managed to handle their massive power grab with any degree of responsibility then a decent plurality of the public may have considered it ok. That would be ten times worse, because the expanded powers would be engraved into common practice and that much harder to roll back when a subsequent administration decided to abuse them. Thankfully for our nation the Executive branch has done us all the favor of illustrating exactly why we don't trust government with expanded power and limited oversight. To wit, as surely as day follows night leaders with expanded "emergency" powers will start pulling inexcusable sh*t like this.

Laura Rozen has a megaphone and is trying to get Congress's attention:

Spying on journalists, like spying on one's own domestic population, is a police state tactic, and one can't help but wonder had Congress been doing a more robust job of oversight, if journalists would be playing this heightened investigation and exposure role alone. But as it is, that's where we are. It's a dangerous moment, and an unsustainable one. Something really has to give. The oversight mechanisms have to kick in. The excesses, the overreach, the suspencion of the law, have gone too far, far beyond a partisan argument. This has nothing to do with the war on terror or national security. This has to do with an attempt at intimidation to evade any sort of accountability. And it's done a huge disservice to this country.

One of Confederate Yankee's readers says we should teach reporters what freedom is all about by sending them to Guantanamo for fulfilling their mission of informing the public -- in short, for doing their jobs -- by exposing secret and illegal government surveillance programs. Of course, he expresses his appreciation for freedom a little differently:

I think we need to open a new wing at Guantanamo for these moonbats, traitors, and leakers. Put them in Cuba with the rest of our enemies, that's where they all belong. Let Mary McCarthy share a cell with Saddam Hussein [who is being held at a U.S. military base near Baghdad, not at Guantanamo, of course]. That'll teach her a little bit about freedom.

For a tonic to the above, check out another comment, this one at The Carpetbagger Report:

From "A Man For All Seasons"[:]

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!