Obama's Associated Press scandal: Time to blame Bush

Obama's Associated Press scandal: Time to blame Bush

obama-signs-patriot-actDid Obama’s DoJ use Dubya’s much-hated-by-liberals Patriot Act?

U.S. Attorney General Eric Holder and his Department of Justice have been under increasing pressure as he defended the seizures of the records of more than 20 Associated Press (AP) phone lines assigned to 100 various journalists of the news service.

But as Barack Obama and members of his administration have been doing since 2008, it may be time to blame Bush.

The Catalyst…

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As a response to a May 7, 2012 AP article concerning the foiling of a terrorist plot in Yemen by al-Qaida to bomb a United States-bound airliner, Holder characterized the article as an example of a “treacherous leak,” although AP officials said they deliberately held the story until the threat had passed.

Secretly, Obama’s DoJ seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012.

The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

The Legal Options Obama’s DoJ Could Have Taken, Step One…

One option possible, as cited by the DoJ’s own strict rules for efforts to get phone records from news organizations, could have been a standard subpoena signed off by either a judge or a grand jury.

A subpoena is a viable option only after “all reasonable attempts” have been made to get the same information from other sources, the rules state.

It is unclear what other steps in total the DoJ had taken to get information in the case. It is, however, widely known that the Obama’s DoJ has published rules that require that subpoenas of records from news organizations to be personally approved by the Attorney General, but it is not known if that happened in this case.

News organizations normally are notified in advance that the government wants phone records and enter into negotiations over the desired information. In this case, however, the government in its letter to the AP cited an exemption to those rules that holds that prior notification can be waived if such notice, in the exemption’s wording, might “pose a substantial threat to the integrity of the investigation.” AP was, thus, never notified in advance.

In fact, the letter notifying the AP that their phone records had been seized though subpoenas via unspecified means was sent Friday, May 10, 2013 by Ronald Machen, the U.S. Attorney in Washington, more than a year after the fact.

As the facts present themselves to date, Obama’s DoJ opted not to utilize this possible legal path.

The Legal Options Obama’s DoJ Could Have Taken, Step Two…

The Attorney General himself could have legally bypassed the requirement of a subpoena issued by either a judge or grand jury by having the AG himself or  “the responsible Assistant Attorney General” sign off on a subpoena.

According to the DOJ’s U.S. Attorneys’ Manual:

The Attorney General’s authorization is normally required before the issuance of any subpoena to a member of the news media or for the telephone toll records of a member of the news media. However, in those cases where the media member or his or her representative agrees to provide the material sought and that material has been published or broadcast, the United States Attorney or the responsible Assistant Attorney General may authorize issuance of the subpoena, thereafter submitting a report to the Office of Public Affairs detailing the circumstances surrounding the issuance of the subpoena….

Department attorneys seeking the Attorney General’s authorization to issue a subpoena to a member of the news media, or for telephone toll records of a media member, must submit a written request summarizing the facts of the prosecution or investigation, explaining the essentiality of the information sought to the investigation or prosecution, describing attempts to obtain the voluntary cooperation of the news media through negotiation and explaining how the proposed subpoena will be fashioned as narrowly as possible to obtain the necessary information in a manner as minimally intrusive and burdensome as possible.

Holder has denied under oath that he ever signed a DoJ generated subpoena. He also said he “doesn’t know” if the Assistant AG ever signed off on any order to seize the AP’s records.

There was also never any attempt by the DoJ to “obtain the voluntary cooperation of the news media” as the U.S. Attorneys’ Manual clearly requires.

As the facts present themselves to date, Obama’s DoJ opted not to utilize this possible legal path.

The Legal Options Obama’s DoJ Could Have Taken, Step Three…

As cited by the Wall Street Journal, Barack Obama’s Department of Justice very well may have elected to utilize the much-hated-by-liberals Patriot Act.

As referenced, if information in conjunction “with the United States’s sovereign interests” in national security is needed, under the USA Patriot Act enacted under the George W. Bush administration, no court order (subpoena) signed off by a judge or a grand jury is required. The act further stipulates that no prior notification or prior attempts to negotiate voluntary cooperation is required.

As the facts present themselves to date, Obama’s DoJ opted to utilize this possible legal path.

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T. Kevin Whiteman

T. Kevin Whiteman

T. Kevin Whiteman is a retired Master Sergeant of Marines. He has written for Examiner, Conservative Firing Line, and other blogs.

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