A Government Too Big For Its Britches

The Department of Justice’s decision to covertly collect significant amounts of phone call data of the Associated Press is just another sign that we live in a country where the government has grown too big for its britches.

According to a letter sent by the AP to the Department of Justice protesting the action, the DOJ secretly gathered information about AP phone calls for two months.  The records include outgoing calls made on more than 20 telephone lines, including general telephone lines and a fax at AP offices in Hartford, Connecticut, New York City, Washington, D.C., and the U.S. House of Representatives, as well as records related to the calls of five reporters and an editor.  Although the government has not said why it collected the records, the five reporters and editor worked on an AP story about a CIA operation in Yemen that foiled a terrorist plot to blow up a plane and the Department of Justice is conducting a criminal investigation of the leak that led to the story.  The White House was unaware of the subpoenas and the gathering of phone records because the Department of Justice handles such actions independently.

Of course, reporters aren’t immune from prosecution if they commit criminal acts — but due regard for the First Amendment requires that any intrusion into news-gathering be strictly limited and carefully targeted, based on a particularized showing of need.  It’s hard to see how the DOJ action conformed to such restraints.  Finding out who the AP called goes to the heart of news-gathering, and collecting records on more than 20 phone lines used by AP employees hardly seems targeted or sensitive to First Amendment issues.  Instead, it seems like a fishing expedition — and perhaps one specifically designed to chill vigorous exercise of First Amendment rights.  And, of course, the veil of secrecy that the DOJ places over criminal investigations, and the lack of involvement by the White House, will make it difficult to hold people accountable for the action.

Stories about overreaching government employees and lack of accountability have become all too commonplace.  I think it’s one reason why many people have turned to the Constitution and the Bill of Rights, hoping that the the written words will serve to restrain governmental excesses.  As the DOJ action in this instance show, however, written words have an effect only if people are paying attention to them.  How many of the DOJ employees who approved the broad collection of AP phone records, in their zeal to catch a leaker, really gave serious thought to what their actions were doing to the AP’s First Amendment rights?

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