Big Brother Is Watching ... Us???

ABC News reports that "the government is tracking the phone numbers we call in an effort to root out confidential sources" -- this according to, well, ABC's confidential sources.

According to the post at ABC's Blotter blog, sources also say the CIA leak investigation has included the examination of "phone calls and contacts" not just from ABC, but also from the New York Times and -- you guessed it -- The Washington Post. The writers of the story specifically say this is not a case of phone tapping, but "a pattern of phone calls from a reporter ... could provide valuable clues for leak investigators" about the identity of the reporter's confidential source.

If true, this is doubleplusungood.


The Comments -- All Together Now!

By Emily Messner |  May 15, 2006; 12:43 PM ET  | Category:  National Politics
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Why should journalists be exempt from a practical investigative tool?

Posted by: Will | May 15, 2006 01:07 PM

Why should journalists have their privacy invaded?

Posted by: Geb | May 15, 2006 01:30 PM

Shall we refer to the laws governing the operation of foreign intelligence agencies within the borders of the US?

If the FBI were tracking these calls, with a court ordered warrant, as part of an investigation into the divulging of classified intelligence by US Government personnel, then so be it. But, I don't think that is what we are talking about here.

And, since it is HIGHLY questionable as to WHAT this administration is doing with our "highly effective tools" with regard to LEGALITY. It can be assumed that those who are leaking the information would be covered under the "whistle blower" laws.

See, if BushCo would have just worked to provide clarity and legal processes by which to carryout their programs, we wouldn't be in the mess. But, because they were afraid they wouldn't get the laws changed...and for good reason IMO...then they decided to go and do it anyway. Well, this kind of careless disregard for the laws of our nation comes with consequences. Those consequences are beginning to come to roost.

If US Government employees are breaking the law, regardless of the intent, and it is being done as a matter of POLICY...then America is BETTER served via transparency then secrecy.

Again, I will not give up my Liberty for the pipe dream of absolute safety...especially when such a pledge comes from an administration so rife with incompetence.

Posted by: AfghanVet | May 15, 2006 01:50 PM

Why would politicians in control of secret govt surveillance tools not be tempted to use it to swiftboat their opponents?

If you work for the CIA and your numbers keep showing up on a reporter's list they can pretty much tell what you are up to.

If you are a senator and you keep calling an escort service or the wife of your top aide you better not oppose them on the next confirmation hearing...

The possibility is endless.

Posted by: | May 15, 2006 02:12 PM

On the other hand tens of millions of illegal aliens live and work and stage massive demonstrations openly and w/o fear, ain't we a free society or not?

Posted by: | May 15, 2006 02:21 PM

Come to think of it, free is not the exact right word. Lawless maybe, from top to bottom?

Posted by: | May 15, 2006 02:24 PM

Why not just break into the office of Daniel Ellsberg to find out if he was the source of the Pentagon Papers leak ... oh yea, that's been done...

Some things are never learned from history, like what H.R. Haldeman said to President Nixon, Monday, 14 June 1971, at a taped meeting.

"But out of the gobbledygook, comes a very clear thing: you can't trust the government; you can't believe what they say; and you can't rely on their judgment; and the - the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the President wants to do even though it's wrong, and the President can be wrong."

Posted by: Sully | May 15, 2006 02:25 PM


For the same reason we would invade the privacy of a suspected murderer by checking his alibi vs. subpoened phone records. The presumption of Messer's article is that journalists should somehow be exempt from a normal investigative tool. As a non-journalist I'd like to know why she feels that way.

Posted by: Will | May 15, 2006 03:07 PM

"subpoened phone records"?

Where have you been? No need for subpoenas or court warrants when the phone companies turn over their whole databases of every phone call made in this country everyday. Heck they may even have real time access to the phone company computers.. They probably know who post which message when on this very blog.

Posted by: | May 15, 2006 03:33 PM


Posted by: Emilio | May 15, 2006 03:50 PM

Can the actions of the government be possibly justified? Claro que si. What if those "confidential sources" are in fact agents of terrorist organizations that use the free American press to (mis|dis)inform the average American?

Posted by: Emilio | May 15, 2006 04:16 PM

Let me clarify:

I have a problem with warrantless wiretaps. If the government is spying on ABC reporters without justification (warrant or subpoena) then that is problematic.

The article does not make clear, however, what process (if any) is used to determine which phone calls are accessed by the Government. What it does make clear is that the content of the phone calls is not being investigated, just the calling pattern.

I would have a problem if the government did NOT use phone patterns to track down people who commit crimes. Ms. Messner implies that this process is very bad... if reporters are involved. I'm still waiting on why journalists who commit crimes should be exempt when non-journalists who commit crimes are not.

Posted by: Will | May 15, 2006 04:20 PM

Hey Emilio,
What if president Bush is a Mexican agent whose job it is to see thatour immigration laws are not enforced. Or maybe Bush is an agent of the Arabs (he was holding hands with a Saudi prince's hand you know) and is working to get more Arab influence in America (i.e., Dubai Ports World?). Maybe someone whould be overseeing what this president is doing! Oh, I forgot, the Congress is SUPPOSED to do this.

Are we being asked to trust the president because he is trying to protect us from every imagined threat but for congress to not oversee what Bush is doing as required under the constitution because Bush waves his hands saying it is all legal? Just where does it say the president has power over the congress? As I read the constitution its the other way around.

Posted by: Sully | May 15, 2006 04:25 PM


Federal Source to ABC News: We Know Who You're Calling

May 15, 2006 10:33 AM

Brian Ross and Richard Esposito Report:

A senior federal law enforcement official tells ABC News the government is tracking the phone numbers we (Brian Ross and Richard Esposito) call in an effort to root out confidential sources.

"It's time for you to get some new cell phones, quick," the source told us in an in-person conversation.

ABC News does not know how the government determined who we are calling, or whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls.

Other sources have told us that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post, are being examined as part of a widespread CIA leak investigation.

One former official was asked to sign a document stating he was not a confidential source for New York Times reporter James Risen.

Our reports on the CIA's secret prisons in Romania and Poland were known to have upset CIA officials. The CIA asked for an FBI investigation of leaks of classified information following those reports.

People questioned by the FBI about leaks of intelligence information say the CIA was also disturbed by ABC News reports that revealed the use of CIA predator missiles inside Pakistan.

Under Bush Administration guidelines, it is not considered illegal for the government to keep track of numbers dialed by phone customers.

The official who warned ABC News said there was no indication our phones were being tapped so the content of the conversation could be recorded.

A pattern of phone calls from a reporter, however, could provide valuable clues for leak investigators.

Posted by: che | May 15, 2006 04:40 PM

Maybe WaPo should switch over to Qwest.

Posted by: ErrinF | May 15, 2006 06:04 PM

Why don't you pull your head out of where the sun doesn't shine and figure it out. The press is the general population's only way to learn if this government is doing something that constitutes a crime, or if not a crime something that would be considered unethical by a majority of this country's people. It needs to be reported, whether YOU like it or not! The framers of our constitution are probably rolling over in their graves at the way the rights they fought so hard for are being trampled on by this nut case in the white house. There happens to be The First article in the Bill of Rights, That guarentees both Freedom of the Press and Freedom of Speech.

Before you go popping off at the pie hole, why don't you go and ask some people who grew up in the 50's & 60's what they were taught in school social studies class especially about how the government of the soviet union spied on their people. That America was free and the Constitution prevented our government from that exact deed. That was the original reason for Vietnam, we had to stop the spred of communisim no matter the cost or else we would end up like the people in the soviet union.

Posted by: Lab Rat | May 15, 2006 06:12 PM

It appears that the inquiry into phone calls are part of a criminal investigative process. Violations of national security, the Espionage Act - Justice Dept is investigating for determination of who committed crimes by leaking or publicly disclosing classified information to the enemy, or seeking to sabotage national security policies conducted by an elected government that they, individual unelected bureacrats - disagree with.

Just as the now-being-investigated media and their allies within the CIA INSISTED be done in their Valerie Plame Cause.

That a special prosecuter be appointed and examine Robert Novak's emails and calls, all White House staff put under oath, to determine who revealed the identity of America's Greatest Blonde Superagent....other than her husband Joe Wilson confidentially bragging about her job to various neighbors, friends, and embassy party attendees.

The present leaks appear to be even more serious than us losing our female James Bond from her Langley desk job.

Billion-dollar programs compromised. Relations with many of our most important European allies in the war against Islamoids disrupted and compromised with revelations of our overseas air transport and detention facilities for Islamic enemy combatants. Systems revealed that not only instruct the Islamoids on how to avoid detection in the US, but also the vast Chinese, Russian, and Israeli spy networks.

Will - "I'm still waiting on why journalists who commit crimes should be exempt when non-journalists who commit crimes are not."

I think it is a false sense of entitlement, of the press being above the law. If Dana Priest or James Risen had been caught trying to transfer the contents of their stories to the Chinese or Pakistani embassies by microdot or CD hidden in a hollowed-out book, they would have been arrested as spies for the enemy. Similarly, the original CIA, Senate staff, NSA leaker would have been if similarly caught.

But somehow, the "crime" disappears if the Chinese espionage ring after Patriot missile technology or the radical Muslim cell waiting on strike orders read about USA programs in the Washington Post delivered to their doorstep instead of from an urgent alert based on covert info Priest or Risen slipped to foreign agents at the Pakistani or Chinese embassies?? And take the countermeasures the FBI watching certain Chinese consular officials noted them putting in place the day after Risen's story??

Putting something in a newspaper or a TV broadcast does not arbitrarily negate all laws passed by Congress on a reporters, editors, or wealthy publisher's whim. The President at least has Article II to fall back on when the Executive resists being the Legislative Branch's B**ch.

Posted by: Chris Ford | May 15, 2006 06:32 PM

um, i think that it is first of all wrong for Bush to be taking over the Constitution to say that tapping like this without warrent is legal. because it isn't. second, once you look into the details, it may not seem like much that all they peek is your calling patterns, but the catch is that those people could easily find out your other info as well. the more private ones.

Posted by: Zan | May 15, 2006 06:41 PM

Lab Rat-

Why the rant?

I'm concerned with Ms. Messner's implication that what happens during normal and legal criminal investigations every day is --for whatever reason-- deplorable if it happens to *gasp* journalists.

At least according to William Arkin over at his Washington Post blog, in Smith V. MD (in 1970, so it was well after your unnecessary 1950s-60s plea) the supreme court decided that a collection of phone call records does not violate ones constitutional 4th amendment rights since it was not a "search".

Also it would mean your phone company violated your "rights"... everytime they sent you a bill.

What pisses me off, as a non journalist, is that journalists feel like this is horrible... if it happens to them. It happens to non-journalists everyday.

Posted by: Will | May 15, 2006 06:47 PM

without peeple trying to help the communist dicktator ship of frankless frannie...other wise knowna s cf witleeesss n weenie les s ttrying to fry ups somore sqeechienees...

hwo oby...padf...

Posted by: jeeezzuiss...l can't go away for one friggin day... | May 15, 2006 07:00 PM

Sorry Will,I miunderstood what you were getting at. It was meant more for Ford!!!!!

Ford No details were printed as to how this so called legal snooping was preformed. Therefore how do you propose that any secrets were given out to our so called enemies. This administration has a bad habit of telling one lie after another to cover it's illegal activities. If it can't divert pressure by that method then it calls anyone who disagrees with its policies un patriotic, or soft on terror. This administration is suffering from mental illness. Bush is suffering from a condition known as "Delusions of Grandour" and Cheney is suffering from good old fashioned "Paranoia" and neither is fit to command!!!

Posted by: Lab Rat | May 15, 2006 07:00 PM

See what inbreeding results in!!!!!!!!!!!!

Posted by: Lab Rat | May 15, 2006 07:02 PM

credit check when you apply for a job?

why is that okay?

in any industry....if you're not handling money?

why did it all of a sudden become okay to treat citizens

like they are of the chattel



unlanded class.............

why is it sooooooooo fashionable tthat everyone is okay about it..?

and why aren't senators in New Mexico, past and present being investigated for hiring illegals...

or Georgia, or Jesse Helms' uncle?


Posted by: why is it okay to do a friggin | May 15, 2006 07:03 PM


Posted by: 然而 | May 15, 2006 07:26 PM

that geo...witless bush...

is a criminal,

and needs to be supported in that mannre...

I also believe that he should be impounded and have his lands sold, as well as those of his fathers and those who have worked with him to perpatrate this fraud upon the people of the United States of America

I think, he should, at the very least have to suffer that fate which he has tried to foist upon us...

stamp his resume with the word "loser"

take his properties, his reputation, give his job to foreigners and let him compete as he would have you compete

after he has wiped his dic on your reputation...verily so...

and let hte unclean be washed in the blood of a lbam


Posted by: I personally think... | May 15, 2006 07:37 PM

occupied by the aids ridden of Africa, so that the stench of his unholiness is removed from the waters of his Crawford ranch...

let lepers lie on his couches so that they may be made clean again after his cloven hoofed presence has mad e the world foul...


Posted by: let his lands be | May 15, 2006 07:45 PM

Until you in the press realize that the Politburo ... um, White House ... and their comrades in the House and Senate of the GOP - that they care nothing about you, and will arrest you for reporting the truth, you'll never be free.

Live free.

Or die.

You've run out of other options.

Even living in Fear like Bush wants you to won't save you.

Posted by: Will in Seattle | May 15, 2006 07:53 PM

prophets adn the number of the beast shall be on Fall Well for his is the fallen tribe those who would selll you false values and sell them in the lawds name...and McCain shall petition him for his unholy blessing...

and so besmirch the military...

Posted by: there shall be many false | May 15, 2006 08:01 PM

but I did like the part about lepers cleansing bush's couch with their presence...

it rings true.


Posted by: x just kidding sort of.. | May 15, 2006 08:03 PM

floor of the whitehouse inviting the fallen to worship him with money....

and to kiss his backwardness...with their lips wet with greed...

and then a great fire came down from heaven...

Posted by: and his cloven hooves beat upon the | May 15, 2006 08:12 PM

place where least expected...

and the laaaaannnnnnnnnnnddd of the freeeeeeeeeeeeeeee

and th e home of the braaaaaaaaaaavvvvvvvvvveeeeee

[jimi spangled banner]




Posted by: and the awfull horror shall be in a | May 15, 2006 08:18 PM

Afghan Vet writes:

"See, if BushCo would have just worked to provide clarity and legal processes by which to carryout their programs, we wouldn't be in the mess. But, because they were afraid they wouldn't get the laws changed...and for good reason IMO...then they decided to go and do it anyway. Well, this kind of careless disregard for the laws of our nation comes with consequences. Those consequences are beginning to come to roost"
I couldn't agree with you more, man!

Will Writes:

"The presumption of Messer's article is that journalists should somehow be exempt from a normal investigative tool. As a non-journalist I'd like to know why she feels that way"

I would agree with you Will if I thought that was the presumption of her article. Unfortunately, I think the presumption of her article is the opposite. That this is not a "normal" investigative tool in that the records in question are not obtained through warrants.

The question here is who are the criminals? I am not prone to being overly suspicious of my government, but in the last couple years I have become increasingly so of this administration. There is a major credibility problem here, and its amazing to me that it has taken this long for a lot of these things to come out. If we had the proper level of checks and balences in our government, maybe all these whistle blowers wouldn't have had to take the risks they are taking to expose the improper behavior of Bush Administrative officials. My sense is that we haven't seen anything yet. So many whistle blowers means that there's some big things to blow the whistle over.

We'll just have to wait and see.

Posted by: DK | May 15, 2006 10:23 PM


"That this is not a "normal" investigative tool in that the records in question are not obtained through warrants."

Per my earlier post: It is "normal" enough to have been brought to the Supreme Court in Smith v. MD. According to Arkin's blog the Supreme Court ruled that checking phone records was not a "search" and thus did not require a warrant.

So a normal, constitutional and extremely practical investigative tool that has been used in the past is "doubleplusungood".

Why? Because journalists are journalists? I'm not a journalist. If I am a murder suspect the DA can check who I called to challenge my alibi or establish motive.

Posted by: Will | May 16, 2006 01:24 AM

You are bright but not too bright ain't you? No sane person will argue with a DA checking a murder suspect's alibi using whatever legal tool at his disposal. The question raised and it needs to be raised is what else a thoroughly political administration is doing with all those phone records. Are they using them to catch terrorists only or are they using them to quell dissent, to muzzle the press, to intimidate political opponents? And if as argued by some if you have nothing to hide than you have nothing to fear, my argument along the same line is if this administration has nothing to hide why do they keep insisting on doing so many things in secret? Why do things keep dripping out bit by bit? Like terrorists don't know their phones could be tapped? Or that the same terrorists are not aware secret prisons exist? If their guys suddenly disappear off the streets and nothing appears in the press the next day or the next week about any arrest, they won't figure out for themselves? So if the purpose is not to keep the terrorists from knowing, what other purposes does all this secrecy serve?

Maybe the Supreme Court needs to reconsider the case in light of the age we live in. A hand search of phone records is one thing a computer search ala Google is another. If you don't think phone record searches are instrusive, how about your credit card purchase searches? How about open up your web browser to let the world in on what sites you visit daily?

As for CF's as usual one sided argument, he needs to tell us what role he thinks the press should play in our society. The govt watches over us all. Who does he think should watch over the govt? Or is our govt infallible in his view? And if he thinks bureacrats leaking secrets is bad, what about all those leaks done by the political bosses of these same bureaucrats? Or does he truly buy the argument that it isn't a leak because the leaker in chief had one minute before decided to declassify the secret so it can be imparted to the sole favorite reporter? And if it wasn't a leak how come the source was not identified prominently in the initial report? What was the non leaker afraid of? He had nothing to hide duh?

Posted by: Duh! | May 16, 2006 02:11 AM

Ah jeez, what an utter mess this spygate is. It is an arrow straight to the heart of the US. It is the very essence of treason, no matter the feeble excuses.

Tell you what, that arrowhead will have to be removed without anaesthetic - and the operation will be life-threatening. Good luck possums!

Posted by: Chris Shaw, Australia | May 16, 2006 07:03 AM

The real issue with journalists is not privacy, it's secrecy. Their job is to publish the truth. When they are obstructed in obtaining and verifying the truth for no reason other than to keep the information from the American public or to preserve bureaucratic boundaries, there's a problem. This kind of situation seems typical of the sort of the fanfares alleging leaking of secrets over the past couple of years. Really, the substance of the information was known and understood by the professionals in opposing strategic positions, it's was just the American public left to guess and to be fed official pablum.

Posted by: On the plantation | May 16, 2006 07:39 AM


You're talking about a targetted application versus a widespread application. How is this tool being used? If there are no specific suspects, is it OK to just start checking everyone's calls or all reporters calls? The potential for abuse is ENORMOUS! That, along with the fact that I don't trust those in power (and I doubt I'm the only one) makes me concerned about these new developments.

I agree with the person that posted suggesting that the SC might come to a different conclusion under these circumstances since the circumstances are very different that those that you refer to.

Posted by: DK | May 16, 2006 09:38 AM

FBI Acknowledges: Journalists Phone Records are Fair Game

May 15, 2006 7:18 PM

Brian Ross and Richard Esposito Report:

The FBI acknowledged late Monday that it is increasingly seeking reporters' phone records in leak investigations.

"It used to be very hard and complicated to do this, but it no longer is in the Bush administration," said a senior federal official.

The acknowledgement followed our blotter item that ABC News reporters had been warned by a federal source that the government knew who we were calling.

The official said our blotter item was wrong to suggest that ABC News phone calls were being "tracked."

"Think of it more as backtracking," said a senior federal official.

But FBI officials did not deny that phone records of ABC News, the New York Times and the Washington Post had been sought as part of a investigation of leaks at the CIA.

In a statement, the FBI press office said its leak investigations begin with the examination of government phone records.

"The FBI will take logical investigative steps to determine if a criminal act was committed by a government employee by the unauthorized release of classified information," the statement said.

Officials say that means that phone records of reporters will be sought if government records are not sufficient.

Officials say the FBI makes extensive use of a new provision of the Patriot Act which allows agents to seek information with what are called National Security Letters (NSL).

The NSLs are a version of an administrative subpoena and are not signed by a judge. Under the law, a phone company receiving a NSL for phone records must provide them and may not divulge to the customer that the records have been given to the government.

Posted by: che | May 16, 2006 09:50 AM

For the link of my latest post please bookmark the following sites:

Posted by: che | May 16, 2006 09:55 AM

Non-issue. Its got the journalists panties in a wad because now they might actually be caught red-handed compromising US security.

Posted by: | May 16, 2006 09:56 AM

In its latest display its incompetence and paranoia, the Bush Administration is attempting to invade the Fourth Estate hoping it will silence or at least intimidate journalists.

Although it may intimidate the less resilient, the backlash will be a high price to pay. Journalists that see themselves as the prime defenders of the "freedom of the press" will rally together and wage a war against the snoopers and censors.

Attacking the Press and its journalists is one of the dumbest mistake this Administration has made to date since all it will do is to increase the investigative interests of the Press against what they now view as the common enemy.

The Press can deal with Conservatives' attacks that call it Liberal but this is quite different since it is an attack against its primary sources of information and what it considers sacred - Protecting its sources.

The Administration has awaken a formidable enemy and this war should be very entertaining as the frequency of dirty laundry exposures dominate the news.

The Bush Administration has overstep its bounds and will soon be taught a lesson in humility.

Posted by: J. Leopold Roy | May 16, 2006 09:56 AM

I believe we are talking about TWO different things. SOME of the collections have been a part of an investigation (good or bad investigation is up for debate). MOST of the calls collected in the NSA program are NOT part of a criminal investigation, but a general sweep of phone calls for use in pattern recognition and trend analysis.

While the courts may have settled on phone records AS PART OF AN INVESTIGATION, they probably (and I don't know for a fact) have NOT settled or even considered such a broad, sweeping program.

THIS is the crux of the issue. THIS is why BushCo does NOT want this to become public. BECAUSE...if their methods are tested in the courts, they will most likely NOT pass the test. As long as it is NOT settled law or written law, BushCo can go to the cronies in the AG's office and have them write a memo that says it's all ok as far as they're concerned.

The problem is these are the same people who wrote memos condoning torture and justifying other DOMESTIC surveillance programs.

Wake up people. They are playing a game with the laws of this nation and it's a dangerous one.

Posted by: AfghanVet | May 16, 2006 10:03 AM

I think another problem we have with the bi-polar nature of this debate is the misunderstanding between INTENT and ACTION.

BushCo's intent MAY very well be honorable in that he wants to protect America. But, even if we ASSUME this to be true (and that is a LONG LEAP of faith), it does NOT justify the ACTIONS taken within the context of this nation and the laws by which we are governed.

We cannot go all Machiavelli on our own asses and hope to suceed in either protecting ourselves or maintaining an open and free society. The end does NOT justify the means in this case - or most, if not all, cases for that matter.

Seriously, we must be able to rationally separate INTENT from ACTION or we will constantly be turning a blind eye to conduct that is far more dangerous to the soul of this country then OBL.

Posted by: AfghanVet | May 16, 2006 10:16 AM

Afghan Vet:

Bush's intent may be honorable, but can the same be said of Cheney or Rove or many of their lesser known cronies inhabiting the executive branch? There are probably things going on that Bush doesn't even know about.

Posted by: DK | May 16, 2006 10:30 AM

We seem to live in an age where people have been convinced that their rights mean nothing. We have a generation growing up who don't care about politics, rights, abuses, genocide. They only care about their toys and when they'll be able to increase their credit so they can get more stuff and get into even more debt.

While I do not believe the government is currently doing much in the way of targetting citizens, the danger is there. The same is true of the press. It's okay 'cause we're hunting terrorists'. It's okay 'cause it's a leak investigation'. How long before it's okay 'cause they don't agree with us'.

I didn't grow up in the 50's or 60's. I was born in the 60's. But I learned about McCarthy. Nixon was an eye opener. When government oversteps its bounds the people have to speak up. If they don't they are accomplice to the crime. People better wake before they get exactly what they deserve.

Posted by: Larry | May 16, 2006 10:45 AM

Emily, anyone with even a passing knowledge of our Founding Fathers knows that the reason they wrote such checks and balances into our system of government , our Constitution, is that they had an abiding suspicion of too much executive power. Their experience with King George fairly shouted out of the pages of our founding documents and was expressed throughout the Articles and Amemndments of our Constitution.

Now, we seem to be confronted in our third century with yet another George who seems to have some of the same Kingly notions on what powers should reside in the Chief Executive. And just as the original George rationalized and justified his expanded use of powers on his colonial citizens, so too does this George use clever forms of wordsmithery to justify and rationlize his own power grab.

Look. It gets worse. That is the history of these types of revelations. They start out with cautiuonary expressions that the procedure is limited in scope and temporary in nature. Then as more details are uncovered, we learn that no, it is not limited in scope at all and far from temporary given that the "war on terror" seems to have no discernible beginning or end. Then, in the final stage, all pretnse is dropped and the really clever legal wordsmithing begins which is fundamentally deceptive in its nature.

That is the process we are in here. History informs us in unmistatakable terms that liberty is rarely taken from us by force of arms coming from some malevolent foreign enemy. Liberty is most often lost within, and is taken from us by smiling leaders and all to the thunderous applause of our own countrymen.

Posted by: Jaxas | May 16, 2006 10:48 AM

So, let's see. A person tells a reporter about illegal/morally corrupt activity within the government (running "Black" prisons in Europe). The reporter investigates and releases the story.
The gov't agency running the prison gets its pants in a knot.
Therefore it is legal for said agency to try to track down the person who told the reporter about their illegal activity by illegal means.
Is that how this works?
OK. Try this one: I witness a crime. I call the local anonymous crime hotline and report it. The police investigate and make an arrest. The criminal's associates attempt to track me down.
How are the two different?
Once a government starts saying: "It's OK to do this because WE are the ones doing it," we, the people iz sc-rewed.
Here is a radical idea: The current administration could try following the Constitution and the other laws that govern the country in its relentless attempts to protect democracy. That way there will not be anything to report.
NB: Making up a law at the spur of the moment or overturning a law for convenience's sake does not count as following the law. That is what we call a dictatorship.

Posted by: Go Qwest! | May 16, 2006 10:50 AM

All the juvenile whiners who are complaining about the phone monitoring should move to Iraq if they are so concerned. Nobody has been harmed by any of this and if it catches some terrorist dirtbag, so much the better. All the "privacy" concerns in the world don't amount to a hill of beans if you are dead!

Posted by: jomama | May 16, 2006 10:54 AM


I understand your point and concern about a general sweep of all reporters phones. But it isn't clear (at least from the article) that this is not a targeted search. If reporter X reported leaked information Y then their phone records would be a very practical way to determine who told them Y. It is also targeted.

I am not sure how the Supreme Court would rule on it now. I would assume that they would protect some process whereas prosecuters could gain access to phone records since this would be an invaluable tool in apprehending guilty people.

Duh and others bring up another concern, that the leak itself is lawful and necessary. The media offers the public transparency they could not otherwise get from this administration. And the public can decide, quite reasonably, what sorts of leaks are in the public's best interests and what sorts are not. And that's a legitimate point that I'm willing to listen to.

But in good faith I'm going to assume, for now, that leakers who committed crimes (not disputed in either Messner or her link's articles) are being tracked using journalists phone records since it is easily proven by opening up the New York Times that the reporters were the ones leaked TO. Innocent people who are not journalists are subject to this kind of intrusion. There is no outrage about the practice until it hits the fourth estate... why?

I would suggest that this discussion would be considerably different if we were talking about a reporter who tangentially or directly was responsible for a murder. If that's the case, Ms. Messner and others should come out and explicitly make that point as opposed to saying *GASP* journalists phone records are being searched! Well lots of peoples phone records are searched consistent with a constitutional ruling in order to apprehend criminals.

If you don't think leaking is a crime then say so. If you do, don't expect special exemptions for journalists because they aren't privaledged individuals under the law.

Posted by: Will | May 16, 2006 10:57 AM

One other point needs to be made here Emily. When Bush first convinced the nation to go to war with Iraq, his numbers in almost every category were high. He was largely trusted by the press and by the people. In fact, one of the more bitter criticisms of the media came not from the right, but rather from the left who believed (correctly as it turns out) that Bush was not being honest about the reasons for going into Iraq.

The point of all of this is that, notwithstanding the Bush administrations's paranoia at the press, his problems lie not with them, but within his own administration. The infromation that the press has put out about his secret doings came from men and women of good will within his own administration who were legitimately offended at what he and his administration was doing because of thier excessive use of questionably legal Presidential powers and of their dishonesty with the American people.

The attempt to gather information on journalists and the rationale that such information will lead them to the leakers within the administration, is dangerous. If we can't win wars without sacrificing our basic Constitutional values. what in the world are we doing preaching such values to the rest of the world.

Bush's excessive use of such questionable powers has done far more damage to our liberties, or system of values and our moral standing in the world than anything Bin Laden or his cohorts could have ever done.

Posted by: Jaxas | May 16, 2006 11:12 AM

The leakers only committed crimes if the actions they reported on were legal to begin with. Otherwise, it is whistle-blowing and is covered.

Now, because BushCo will do everything to ensure that their actions are reviewed for legality, they will use the federal government to "investigate" activities. What their short-sightedness is allowing them to miss is that if they take the person to court, the information reported will have to be reviewed.


This isn't about stopping leaks. It's about stopping leaks that make them look bad or expose illegal activities.

Exposing secret prisons does NOT aid our enemy as it has nothing to do with how they operate. Exposing virtually ANY of the NSA operations is meaningless as I can point you to about 5 books that tell you everything you need to know about our capabilities. And, lastly, telling them that we are doing it within our own borders changes nothing as if their OPSEC is worth a damn they assume they could be tracked anyway.

As for being dead; I would rather be dead then live in a society paralyzed by fear and oppressed for "their own good".

BushCo and the "gentleman" named "jomama" are exposing themselves to the exact same attack the used in the 90s. By taking unilateral action to "protect" us, they are basically saying...they know what's best for us. Please tell me HOW that is different from such elitest attitudes so vehemently attacked by the right in the 90s?

And, what exactly does a God-Fearing Christian have to fear of death? Is it not the great reward?

Perhaps it is you who should consider moving if you would so easily give up your rights in order to live under the delusion of safety. Perhaps the NSA will hear your last gasps as you're mugged in the streets of DC and killed (FAR more likely to happen then to be killed by a terrorist) while talking to your buddy at the AEI.

Posted by: AfghanVet | May 16, 2006 11:22 AM

The assumption that reporters are criminally exempt is false. You can hold the press accountable for illegal activity. The point of the phone call tracking in this case would be via warrant. We have a crime, let's track the phone calls to try and prove the case. That is far different then tracking ALL calls. Why? Because it gives the person doing the tracking a chance to look for illegalities whether they exist or not. THAT is an abuse of rights. Period.

Posted by: Larry | May 16, 2006 11:27 AM


Actually, they would have to prove sedition or treason to prosecute the reporter. Not going to happen. Unless the reporter signed a National Security Agreement, they can print whatever they want.

It's the LEAKERS that they want to find. You know...a witch hunt.

The problem is that the leakers they are trying to find have been trained to collect and deliver information in clandestine ways. Good luck with that W.

Posted by: AfghanVet | May 16, 2006 11:34 AM


No warrant is required to track phone records in accordance with the 5-3 (Powell did not participate) Supreme Court ruling in Smith v. MD, 442 U.S. 735.

If someone stumbles upon a "crime" that is committed merely by dialing a particular number then they can report it since no warrant is required. I think what others are concerned about is the government silencing/blackmailing journalists or eliminating their ability to contact leakers via cell phone.

Regarding the former I don't know what else to tell you. Judge Blackmun speaking for the Supreme Court: "Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information [442 U.S. 735, 736] to the police"

Regarding the latter --that having one's phone records accessed prevents a journalist from contacting a potential leaker-- if we take in good faith that leaking is illegal then wouldn't this be the entire point?

Posted by: Will | May 16, 2006 11:41 AM

Our Constitution can be likened to the proverbial woman of virtue. Once that virtue has been compromised, she is never quite looked at in the same way.

Bush has violated the Constution in much the same way as a brute for whom rape is an expression not of sexual gratification but rather the satisfaction of weilding raw, brute power. Bush seems to get off on this sort of thing and particularly off the slavering applause he usually gets from conservative talking heads who share his brutish festish for such expression of power.

The thing about such loss of virtue is that once having lost it, one cannot get it back. Like the woman of virtue, America is no longer looked at in quite the same way and never will be again.

A pity.

Posted by: Jaxas | May 16, 2006 11:41 AM

"...if we take in good faith that leaking is illegal then wouldn't this be the entire point?"

Well, that would be the problem wouldn't it?

Your asking me to trust an administration that has betrayed my trust for the last 6 years. Again, PROVE the actions of the NSA, CIA and MILTARY that have been leaked are legal, and then we can discuss whether the disclosure of such activities constitutes a breach of a signed national security agreement.

Again, you and I will NOT be able to determine such things because any kind of Congressional or Judicial review will probably not be pretty for this administration. Therefore, this is all just a game of intimidation as if they seriously pursued this, they would expose their own actions to scrutiny it could NOT survive.

Posted by: AfghanVet | May 16, 2006 11:49 AM

Bravo, Jaxas. What a droll comparison. Congress Shmongress. Constitution Shmostitution.

To summirize: the only law that matters is the law of power. I notice many a blogger are having trouble comprehending that.

Regretfully, Vet, whether you ( or millions of others) trust this administration doesn't matter AT ALL. It's doing whithout that trust just fine.

Posted by: Emilio | May 16, 2006 12:47 PM

Semi-technical explanation coming soon. For now, to read additional comments on this entry or to leave your own comments, please click on this link:

Posted by: Emily Messner | May 17, 2006 08:28 PM

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