The AP phone records scandal is seven years old

Apparently, there is a lot of outrage right now over the trampling of press freedoms occasioned by the FBI’s secret perusal of AP’s phone records.

The president of the Associated Press called it a “massive and unprecedented intrusion” into newsgathering activities, while Dana Milbank at the Washington Post reported today that the press corps at yesterday’s White House briefing was “incensed” over this “extraordinary abuse of power.”

Oddly enough, though, it was exactly seven years ago today that it became public knowledge that the Federal government tracks reporters’ phone records at will. The next day, a “senior federal official” told ABC’s Brian Ross, one of the targets, “It used to be very hard and complicated to do this, but it no longer is in the Bush administration.”

The reason it was so easy was because a few years earlier, Congress had passed a law making it easy—the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, otherwise known as the USA Patriot Act.

Two days later, I asked White House press secretary Tony Snow about it. He issued a brief denial, and no one else at the briefing seemed at all concerned about the matter.

I suppose it’s a good thing that they eventually found their spines, but really it shouldn’t take seven years and a Democratic president for the press to learn that patriotism is the first resort of scoundrels.

61 comments to The AP phone records scandal is seven years old

  • Inkberrow

    Full circle back to the tension between “knowing as correct” and “knowing as believing”, especially as here where there remains a colorable, unrefuted-by-litigation interpretation of the statute that Plame was not in fact “covert” after all. My opinion is that Fitzy would have made short work of three and four by reasonable inference if he’d one and two nailed down.

    “Knowing” after all, as the applicable culpable mental state, must or should apply to every material element. Is Plame actual covertness an element, or an attendant circumstance objectively established? I read that one can convict a fellow of delivery of drugs within a codified protected school zone even if he has no idea of the special protection or even of a school’s proximity.

  • Proving somebody knows something is actually pretty difficult unless you have, you know … proof.

  • Inkberrow

    You’re still skipping over the know-versus-believe tension.

    If #1 and #2 were so cut and dried, it’s perfectly reasonable to infer #3 and #4 merely from the proofs of the outing behavior and the “gotcha” reactions in the first place. This is Fitzy the Bulldog we talking about!

    When folks are convicted of knowingly turning over stolen property, I assume there is rarely a tape recording with, “I just love being a fence!”. And in the Libby case some sort of smoking gun would be more likely, not less.

  • Infer is not the same as prove. I’m not skipping over anything. You keep injecting this “bulldog” bullshit, but Fitzgerald has to meet the same burden as any other prosecutor. If he couldn’t produce some actual evidence that a defendant knew all of the things necessary for a guilty verdict, he would likely not get a guilty verdict. I know people in your position don’t like to acknowledge that there was actual evidence in the Libby trial, by way of witnesses and Libby’s own notes and more, that he did the shit he got convicted of, but there was. It wasn’t simply a matter of Fitzgerald hypnotizing the jury with his bedazzling charismatic relentless juju.

  • Inkberrow

    There’s nothing wrong with inferences. In fact, juries usually can’t do their jobs without them. That’s why they are constantly reminded by prosecutors that “beyond a shadow of a doubt” is not the operative standard, and nor should it be. Fingerprints themselves are circumstantial evidence requiring an inference.

    Finally, I call Fitzy the Bulldog because that was his reputation, and a well-earned one, I assume. As I said before, not the type to quail at the prospect of having to prove “knowingly” under these particular circumstances, and certainly not imagining he’d need the type of proof you appear to be positing as necessary for conviction.

  • JackD

    I see that you changed the subject again. What I said didn’t have to be litigated to be true was Plame’s covert status as opposed to Libby’s or anyone else’s knowledge of it and that the government was trying to maintain it. As to the rest, I’ll let you non lawyers argue on into the night. I will comment that Fitzgerald may have had problems of proof with which we are unaware. Generally speaking, prosecutors ordinarily do not offer reasons for the decision not to prosecute. As I recall, Fitzgerald didn’t in this case.

  • Schmutzie

    I don’t recall him using this sort of obvious obfuscation. Likely I’m recalling Fray discussions in a more flattering light than they deserve….sorta like Cheney fans like Ink viewing 2000-2008 though rosy glass.

  • What Ink is saying, Jack, is that without litigation he won’t believe it was true, and that if it was true it would have been litigated because if it was true, a jury would magically convict without any evidence supporting the other requirements for a conviction. Since nobody was charged, Plame must not have been covert. It’s like the Cirque de Soleil of logic.

  • JackD

    Back in the day when I was trying cases I used to sit my clients down to make sure that they understood that juries and/or judges are not God. Funny how difficult it is for Americans to accept that obvious fact.

  • A good friend of mine handled a lot of drug case defenses. He wanted to go to trial in two circumstances, when he was confident of an acquittal and when his client’s only hope was to keep things rolling long enough for somebody on the other side to screw up. Assuming ability to pay.

  • Inkberrow


    The subject was whether Plame’s covertness under the statute was a settled matter, from which Weldon, after answering in the affirmative, er, inferred that Libby was not charged because of a lack of proof of culpable mental state. That conclusion I challenged by asking how “knowing” interfaces with factual and legal statuses which are predictions unless and until proven up. Apparently the deficit of proof on “knowingly” also need not be litigated to be true, even as Fitzy never detailed the reasons for his decisions. Weldon, I’d say that’s more at Blue Man Group logic….

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