< The Totally Legal Subpoena


Friday, May 17, 2013

BOB GARFIELD:  From WNYC in New York. this is On the Media. I'm Bob Garfield.

BROOKE GLADSTONE:  And I'm Brooke Gladstone. So this week we learned that the Department of Justice secretly obtained phone  records of the Associated Press for April and May of 2012.  Attorney General Eric Holder says the leak being investigated warranted the probe.

ATTORNEY GENERAL ERIC HOLDER:  This is among the most serious leaks that I’ve ever seen. It put the American people at risk, and that is not hyperbole.

BROOKE GLADSTONE:  That leak showed up in a May 2012 article that revealed how the government foiled an al Qaeda attempt to blow up a plane, thereby refuting the government's claim that no al Qaeda attacks had been planned for the one-year anniversary of the killing of Osama bin Laden. The next day, the New York Times and other sources reported that the conspirator whose task was to set off that bomb was actually a double agent working against al Qaeda. Geoffrey Stone is a professor at the University of Chicago Law School. He says that the law is pretty clear when it comes to getting those phone records.

PROF. GEOFFREY STONE:  Yeah, there’s no real question at all that what the Justice Department did here was legal.

BROOKE GLADSTONE:  The law does require the authorities to jump through a few hoops, right?

PROF. GEOFFREY STONE:  No. The Justice Department has its own internal voluntary guidelines. They have to go to the Attorney General or the Attorney General’s designate to get approval to do this, which apparently they did. They have to have demonstrated that they have exhausted other reasonable means of obtaining the information, and they’ve certainly suggested that they’ve done that. We don’t know all the facts about that but it’s a perfectly reasonable proposition that they’ve acted in conformity with their own internal guidelines.

BROOKE GLADSTONE:  So let’s talk about what rights people have.

PROF. GEOFFREY STONE:  The Supreme Court held in the 1970s that we have no reasonable expectation of privacy in information that we have voluntarily disclosed to a third person. According to the conservative justices of the Berger Court, that included a bank with your financial records or a phone company with your telephone records, and so on. I happen to think this is a terrible doctrine. The truth is in modern society we are required to share what otherwise would clearly be private information with third parties, and to suggest that the fact that we do make that information available indicates a lack of interest on our part of keeping the information private seems to me a pretty ludicrous doctrine. But it’s the law.

BROOKE GLADSTONE:  So sending an email because you’re going through a server is a third-party communication but sending it through the US Mail is not.

PROF. GEOFFREY STONE:  Right. What’s inside the letter is private. If you send a postcard, it’s not private. Now, in this instance, I should say, there’s one facet of this investigation that makes it less troubling than might otherwise be the case because here all the government is getting are the phone numbers. It would be as if the government was looking at the addresses on the mail. This is not a case where the government is, is listening to the phone calls.

BROOKE GLADSTONE:  So the President suggested, once again, that Congress pass a Federal Shield Law - it exists in many states right now - that would give more protection to the sources of journalists. This has always gone down. It'll go down again. And there are exceptions in it that would probably not have affected this case anyway.

PROF. GEOFFREY STONE:  I think that’s right. I mean, my guess is that if, if the latest variations on the proposed statute were enacted, that the government probably could have done pretty much what it did here anyway.

BROOKE GLADSTONE:  It won't pass. Why do you think it should?

PROF. GEOFFREY STONE:  Because it’s better that there be a statute than to be entirely within the discretion of the Department of Justice. I would go well beyond what the proposed statute requires. I think that the government should be subject to much greater restrictions in terms of subpoenaing reporters to reveal their sources or going after phone records, as in this case. There are circumstances where I think the government does need to find a source, and if they can demonstrate that a person is seriously dangerous to the nation, then I think demanding that the journalist turn over the information is reasonable. But beyond that, I would say no.

BROOKE GLADSTONE:  Now the Republicans are really mad at Obama's Justice Department for going after the AP - not just Republicans, but also Democrats. Republicans have always killed that National Shield Law, so you’d think maybe there'd be a chance to pass this law.

PROF. GEOFFREY STONE:  Well, first of all, the reason the Republicans are going after it is pure political hypocrisy. To suddenly go after this administration for doing something that they have called upon government to do ever since 9/11 is just completely hypocritical.


PROF. GEOFFREY STONE:  And, of course, they won’t vote that way. They absolutely won’t vote that way ‘cause they don’t believe in what they’re saying, and they don’t think it would be good for the nation.

BROOKE GLADSTONE:  I just wonder in the President pushing this bill again this week do you see the same? You worked for his election at one point and then became very critical of him on these precise issues. Is he being a hypocrite right now?

PROF. GEOFFREY STONE:  I don’t – I don’t think that’s hypocritical. I think that’s expedient. He’s basically always been in favor of this statute, and I think it’s just taking advantage of the fact that the – that the Republicans are saying, you know, we should not allow the government to do this, and he’s saying, okay, if believe that, let’s pass a law.

BROOKE GLADSTONE:  Geoff thank you so much.

PROF. GEOFFREY STONE:  Good to talk to you.

BROOKE GLADSTONE:  Geoffrey Stone is a constitutional scholar and a professor at the University of Chicago Law School.


Geoffrey Stone

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