CAUSE FOR CAUTION ON SCANDAL NO. 3

           The firestorm of scandal and scrutiny which currently envelopes the Obama administration is long overdue.  For six years, and especially during the periods when an objective and adversarial press could have made an electoral difference, the predominant media outlets have acted instead as allies and propagandists for Obama and his leftist agenda.  He could not have been elected or re-elected without their unwavering and sycophantic support and protection.

            But now, three glaring political controversies have effectively forced a reluctant mainstream media, however half-heartedly, to join conservatives, Republicans, and other common-sense observers in subjecting the Administration to a well-deserved storm of criticism and questioning.  Whether the scandals inflict lasting political damage upon Obama and his extremist agenda remains to be seen.

            Without going into detail, two of the three controversies involve manifest wrongdoing or political corruption that should entail severe adverse consequences for Obama, Hillary Clinton, and other Administration figures.  The indecent abdication of responsibility and due diligence accompanying the brutal terrorist murder of our Ambassador and other brave Americans at Benghazi was then shamelessly exacerbated by the political cover-up that followed.  Equally, and perhaps more, serious is the invidious political discrimination engaged in by the IRS in handling the routine applications of conservative groups for clearance as non-profit organizations, exemplified by the administrative harassment of organizations displaying any link with the Tea Party or similar conservative indicators.  Efforts to minimize these scandalous episodes by various diehard Obama courtiers are nothing more than the desperate maneuvers of political spin-doctors to obscure the facts in clouds of rhetoric, and should be dismissed as such.

             But the third leg of the current Tripod of Scandal, involving Justice Department subpoenas of certain AP reporters' phone records in connection with a national security leak investigation, is another matter.  A close and careful examination of the facts surrounding this episode, and of the consequences of a legislative or administrative over-reaction, is very much in order.   In particular, the Administration's transparent attempt to deflect criticism of its heavy-handed maneuver by proposing enactment of an ill-considered Federal Shield Law – which is to say, in effect, "stop us before we start another fishing expedition" – should be firmly rejected.

                                           

                  Al Jazeera, Peoples' Daily, and Pravda Could Benefit from Media Privilege

 

              Although the scope of the Justice Department's probe may well have been overbroad, much of the indignation aroused by the matter is based upon flawed legal premises, fails to take into account the broader consequences of endorsing the AP's claims for media immunity, and extends an almost laughably misplaced sympathy and support to the purported "victims" – i.e., some of the most pro-Obama, anti-conservative elements of the liberal mainstream media.  There are many transgressions and abuses of power for which Eric Holder should be called to harsh account – ranging from race-based maladministration of the Civil Rights Division to flagrantly political disregard for the Constitution -- but permitting  the subpoena of a number of AP reporter's phone records on apparent national security grounds is among the least of his offenses.

            This writer has extensive familiarity with the issue of special press privilege and immunity from compelled testimony and production of evidence.  While serving as Senior Counsel at the Department of Justice's Office of Legal Counsel (OLC) during the Bush Administration,  I was closely engaged in the review of, and ultimate opposition to, what is commonly referred to as the Media Shield bill or, later, the Free Flow of Information Act (FFIA).  Briefly, the bill has been fervently pushed by the liberal media for decades (with the AP in the lead) in order to immunize themselves from the duty to provide evidence and information that applies to other citizens, and to facilitate the use of delinquent, and in some cases subversive, government officials to obtain classified and other confidential government information.  The legislation has been aggressively championed by the most liberal members of the Senate, such as Chuck Schumer, Patrick Leahy, Barbara Boxer, and the pre-presidential Barack Obama, while it has been strongly opposed by most Republicans and conservatives. 

            Sometimes the unauthorized release of inside government information is in the public interest – e.g., if an IRS employee revealed to a reporter that the agency was illegally targeting conservative groups for scrutiny; and sometimes it isn't – e.g., if a Department of Defense official or serviceman sympathetic to Islamic terrorism leaked information to, for example, AP or Al Jazeera, that might identify a U.S. agent or mole who had infiltrated a terrorist organization or government.  Heretofore, the press and others have found ample means of obtaining the release of inside government information for beneficial purposes without the interposition of a Shield Law, which would effectively give the predominantly liberal federal courts the ability and power to decide what information could be leaked without legal interference, and by whom.  Unfortunately, the press has also often been able to obtain confidential and classified information from disloyal government personnel that is harmful to national security, without the need for a federal Shield Law to facilitate such wrongdoing.  In short, the interposition of a Federal Shield Law would shift the roughly reasonable balance of interests that presently exists in favor of national security leakers and the media interests – think WikiLeaks or Al Jazeera if the AP, the New York Times, or Slate don't do the trick for you.

            Significantly, but just as I suspected when the AP subpoena story broke, the Obama Administration has promptly sought cover from the controversy by suddenly and urgently advocating the reintroduction and enactment of a Federal Shield law, in the form of the FFIA  bill previously introduced by the media-enamored Senator Schumer and previously blocked by a Republican filibuster.  If Republicans and conservatives now reverse gears and support the FFIA to appear consistent with their attacks on the Justice Department's AP subpoenas, it will be the triumph of misguided political calculation over rational policy.

            The reflexive enthusiasm with which some conservatives and Republicans have allied themselves with the ultra-liberal herd of AP reporters on this issue is based on a number of mistaken premises, and fails to consider some rather grave long-term consequences.

            First, twittering voices from both sides of the ideological and partisan divide have casually repeated the mantra that such subpoenas of reporters' records somehow violate an established First Amendment privilege that extends to reporters.  This canard was rejected by the Supreme Court over 40 years ago in the case of Branzburg v. Hayes, 408 U.S. 665 (1972).  The Court concluded that the First Amendment did not afford reporters any special protections. "Until now, the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination," Justice Byron White wrote for the majority. "We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do."  Simply put – and especially in an age when citizens using the Internet are often more effective and reliable reporters of fact than professional reporters – representatives of the establishment media should not be singled out for special immunity from whatever duty to provide evidence and testimony that applies to ordinary citizens.

            Second, there has been much discussion of certain Justice Department regulations that apply to the Department's compulsion of testimony or information from media sources and whether Mr. Holder and the Department complied with those rules.  Those "regulations," however, are not binding rules with the force of law or statute, but, rather a policy statement which in terms imposes internal "guidelines" on Department officials and attorneys in this context.  See 28 CFR 50.10.  On the other hand, however, those policy guidelines are quite restrictive on obtaining information from the media, go far beyond anything required by the First Amendment, and, if strictly adhered to, would themselves obviate the perceived need for a federal Shield Law now risibly invoked by the Administration.

            Third, endorsement of the AP's and other media's claims to immunity from compulsory process, especially in national security/leak cases, entails adverse consequences  for legitimate law enforcement and national security concerns that are receiving short shrift in the focus upon the relatively broad scope and heavy-handed execution of the AP reporters' record sweep. 

            Perhaps the thorniest problem in establishing a judicial or legislative media or reporters' privilege is formulating a sensible and workable definition of the group to be protected.  In the age of the Internet, limiting such a privilege to mainstream or traditional media would be grossly underinclusive and discriminatory.  For example, the work of Internet bloggers in exposing the flagrant misreporting of President Bush's National Guard records by discredited CBS media maven Dan Rather demonstrates that citizen bloggers are often more effective in accurately reporting the news than the so-called "reporters" who commonly invoke the privilege of a media shield.  Conversely, extending protection to anyone and everyone who uses the Internet or other modern media to gather and report "news" would entail such a broad privilege as to create an insupportable obstacle to effective law enforcement investigations.

            Another problem posed by media claims to investigative immunity involves the question of whether foreign media should be covered.  If it is wrong for the Government to obtain the phone records of AP reporters in an effort to locate a national security leak, what if the leak recipients were reporters for Al Jazeera, Wikileaks, Peoples Daily, Pravda, or, for that matter, Le Monde?  Do we really want foreign media, even hostile foreign media, to enjoy privileges and immunities not extended to ordinary American citizens?  Although later iterations of the Media Shield legislation have made various efforts to address this embarrassing aspect of a media or reporters' privilege, there is no guarantee whatsoever that judicial or legislative formulation of a media privilege would be limited to U.S. media or reporters.  In this respect, both the establishment media and the U.S. State Department have shown an oddly misplaced reluctance to offend foreign governments and foreign media in connection with the coverage of proposed Media Shield legislation.  Indeed, when I included a critical reference to Al Jazeera in one of the comments I drafted opposing such legislation while I was at the Justice Department, the State Department insisted upon its removal and, despite my resistance, the reference was deleted.

            A final, and perhaps most critical, problem posed by a judicial or legislative reporters' privilege is placing what can sometimes be sensitive national security determinations in the hands of the increasingly liberal federal judiciary.  Although the facts are not fully known, it appears that the Justice Department's procurement of the AP phone records was part of an effort to identify the source of a highly significant national security leak.  It also appears that the leak may have involved classified information relating to the identity of moles that had infiltrated Al Qaeda or a similar terrorist organization.  Under such circumstances, it is not at all clear that the need to protect the AP reporters' phone records – not the conversations, just the numbers called – outweighs the Government's need to identify and address a leak that poses a genuine threat to national security and, specifically, the abilityy to maintain and protect undercover agents in the field. 

            Obama will no longer be President in 2017.  Yet the Media Shield legislation he now advocates --- and the sweeping claims of privilege long advanced by AP and now reflexively endorsed by some otherwise sensible voices in their haste to pounce on the Justice Department's apparently overbroad subpoenas -- could enable leftist federal judges appointed by him to thwart a future President's efforts to identify, for example, a disloyal DoD employee leaking dangerous national security information to an Al Jazeera or a People's Daily. 

 

            It is all perfectly well to investigate and criticize whatever excesses or mismanagement occurred in the Department's AP subpoena fiasco, but it would be a serious mistake to embrace an unwarranted and unworkable reporters' privilege or Media Shield bill in the process.