May 17, 2013 | By Dave Maass

Congressional Outrage Over AP Phone Records

To steal a line from Rep. Virginia Foxx, the gentlewoman from North Carolina: This is our shocked face.

Far be it for us to complain about Congress making noise about press freedom and improper surveillance, but c'mon—it's about darned time someone other than Sen. Ron Wyden and Rep. Zoe Lofgren stood up for civil liberties. It's just too bad that something like the Department of Justice's subpoenas for Associated Press phone records has to happen first before our elected leaders take notice.

But, better late than never. Shock is reverberating through the halls of Congress, particularly in yesterday's Justice Department oversight hearing in the House Judicary Committee, where Attorney General Eric Holder denied knowledge of (and culpabality in) the AP leak investigation. Some of the outcry is political, for sure, with Republicans jumping on the opportunity to pair AP subpoena revelations with news of the IRS targeting conservative groups and new information related to the Benghazi attack. We'll stow our cynicism for now and embrace the outrage where we find it, especially if it results in the passage of the newly introduced Telephone Records Protection Act.

So how much outrage is there? We used the Sunlight Foundation's handy tool, Scout, to search Congressional speeches to measure the snowballing fury at the DOJ among members of Congress. Here are some of the highlights.

Rep. Ted Poe (R-TX) in a floor speech titled "State Secrets vs. Freedom of the Press":

Mr. Speaker, when I went to the Soviet Union in the 1980s, the Communist leaders told me that they believed in and had a free press and they also had free speech. However, I also learned that Soviet law prohibited these freedoms when they jeopardized state secrets--or national security, as we call it in America. The state-secret provision was so broad the Soviet press and speech were gagged and shackled. They certainly were not free.

Now we learn that our Department of Justice improperly seized without notice phone records of over 100 Associated Press journalists--all in the name of national security concerns.

To me, this is a clear violation of the spirit and letter of the First Amendment. These actions border on the Soviet method of legalizing these freedoms but never allowing them. So it's time to revisit U.S. law and require in all cases judicial review where these types of records are seized.

We cannot allow our government to arbitrarily abolish the First Amendment in the name of ``state secrets.''

And that's just the way it is.

Sen. Marco Rubio (R-FL):

Then the revelation on Monday that the Justice Department of the United States--think about that, the chief law enforcement agency of the country--had issued this blanket search of the phone records of I think the Nation's largest reporting group, the Associated Press. I understand if they were going after a leak that endangered America and security; that is one thing. We can have a debate about that. But they went much further than that. It was a blanket request of all of these phone calls, including the switchboard. Pretty outrageous.

...For example, you think about some of our most precious freedoms--the First Amendment right to free speech. Think about if you are a reporter at the Associated Press. Think about if you are a source--unrelated to national security--to the Associated Press. Think about if you are a whistleblower, someone who is blowing the whistle on government activity because you work in the government and you think what the government is doing is wrong. Think about that for a second.

Now, all of a sudden, what are you afraid of? I am not calling that reporter back because their phone might be tapped, my number might show up on their records, because the Justice Department has just shown they are willing to do that. Think about the chilling effect that sends up and down the government.

If there is wrongdoing somewhere in the government right now, people are probably afraid to blow the whistle because they are afraid they are being surveilled by the Justice Department or that the person they are talking to is being surveilled. That is how outrageous this is.

Rep. Virginia Foxx (R-NC):

The administration's apologists are in a panic. They claim the President is not responsible for any of this wrongdoing. The President, who made a career touting government as the solution to most every problem, now solicits our understanding. It seems the leviathan is rather unwieldy and difficult to manage.

This is my shocked face.

Rep. Jeff Fortenberry (R-NE):

[W]e are learning that the Department of Justice seized phone records of Associated Press reporters, including records of their personal phone lines. Now, the ability to wiretap and probe needs to be in place in narrow circumstances, but the wide-ranging nature of what happened raises a number of questions, questions that beg us to ask: How do we protect the freedom of the press?

Rep. Jim Himes (D-CT) in a floor speech titled "Freedom of the Press":

Mr. Speaker, it is the fashion amongst many of us to blame the press for our troubles, and that's, of course, because the press reports our troubles. At their best, the media keeps us honest, it keeps us in our constitutional lanes, and it reports our failures. It is essential for democracy. There is a reason why freedom of the press is not the Second or Fourth or 10th Amendment. It's the First Amendment.So, Mr. Speaker, I am profoundly concerned over the Department of Justice's overbroad and chilling behavior with respect to the Associated Press. Seeking records for 20 phone lines, giving the AP no notice, refusing at this point to discuss their behavior feels to me like overreach.Mr. Speaker, it's time for the Department of Justice to stand back. You can imagine that there is somebody out there today who has a failure to report who is chilled and says, I will not do that because of the approach that the Department of Justice has taken.Mr. Speaker, I am proud to serve in the very core of democracy, but this Chamber rests on foundations, and a key part of that foundation is a free and competent press.

Rep. Morgan Griffith (R-VA):

Well, we once had a political party known as the Know-Nothings. We now have a President who wants us to believe that he knows nothing...He wants us to believe that he knows nothing about the Department of Justice subpoenaing 2 months of the Associated Press' phone records. 

What has happened to the days in America when Democratic President Harry Truman proudly placed a placard on his desk that said: "The buck stops here''? Perhaps, sadly, we have returned to the days where the question to the President of the United States ought to be: What did you know and when did you know it?

Sen. Deb Fischer (R-NE):

Just yesterday we learned of another breach of public trust and another potential violation of our First Amendment freedom--the freedom of the press. Press reports indicate the Department of Justice secretly obtained extensive telephone records of reporters and editors for the Associated Press in what the head of the news organization called a ``massive and unprecedented intrusion'' into how news organizations gather the news. According to the Associated Press's legal counsel, the records obtained included those from reporters working out of the House of Representatives press gallery.

While it is unclear at this point how many reporters were targeted and why, the effect of this data gathering is clear: intimidation of the press and suppression of free speech.

This is unacceptable. A free and unfettered press is vital to any democracy. Moreover, the scope of this information gathering is simply beyond the pale--and likely beyond precedent.

Update: Rep. Hank Johnson asked us to include some of the remarks he prepared for the judiciary hearing. 

Rep. Hank Johnson (D-GA):

I strongly believe that Congress must protect the free flow of information and ideas under the First Amendment. This is why I voted for the Free Flow of information Act, a federal shield law that would have required judicial oversight over media subpoenas.  This vital legislation, which was blocked by Republicans in the Senate and opposed by some of the same Members of the Committee who are shocked by the AP investigation, would likely have avoided much of the alarm caused by this investigation.

Protecting the freedom of the press also requires that we strike a careful balance in preventing national security leaks where there is a very real threat to American lives.  As a member of the Armed Services Committee, I am acutely aware of the threats that face our Nation and the need for confidentiality when confronting these threats.

The public outcry in response to the AP investigation also illustrates the public’s alarm with the lack of privacy protections for our everyday communications.  Every day, the phone records of countless Americans are subject to criminal investigations without a warrant based on probable cause.  Investigators need only a subpoena to obtain the numbers you call and receive, as well as emails and text messages that are more than 180 days old.  Warrantless surveillance brings us ever-closer to the surveillance state described by George Orwell where “every sound you made was overheard,—and, except in darkness, every moment scrutinized.”

This issue demonstrates the urgent necessity to modernize laws that have been outpaced by technology and the ease of collecting massive amounts information about Americans.  We need to modernize the Electronic Communications Privacy Act of 1986 by requiring a warrant for surveillance involving communications, phone records, and movements.  We need to update the Espionage Act of 1917 to limit prosecutions to cases involving real harms to our national security.


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