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Is the Seizure of the AP’s Phone Records a “Non-Story”?

In a thoughtful post below, Orin suggests that we don’t know enough about the federal government’s seizure of the AP’s records.  As Orin notes, the Justice Department has special rules for this sort of thing.  Yet there are reasons to doubt whether the government followed these rules.  Among other things, the government is required to take ” all reasonable steps to attempt to obtain the information through alternative sources or means,” including attempts at negotiations with the media source before any request for a subpoena is made, unless the Assistant Attorney General concludes such negotiations would pose a “substantial threat” to the investigation.

This is hardly the first time the federal government has investigated the leak of national security information in the past dozen years, and yet this is the first time a seizure of this scope has been reported.  The AP’s letter of protest certainly suggests this was an unprecedented seizure with serious implications for the AP’s newsgathering operations across a range of areas, and that the requisite efforts to obtain the necessary  information through other means were not undertaken.

Perhaps the AP is wrong on these points, and perhaps DoJ did everything that is required.  If so, there might not be cause for outrage.  But that would hardly make this a “non-story.”

UPDATE: To place this in further context, it’s worth remembering the FBI has a history of obtaining phone records without following the relevant guidelines.

SECOND UPDATE: Another reason I don’t believe this is a “non-story” is because seizures of this sort have potentially significant implications for newsgathering organizations. Further, insofar as the relevant guidelines vest the Justice Department with substantial discretion, how such discretion is used is a matter of significant import. I agree with Orin that it’s possible that the Justice Department acted properly here [...]

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Justice Department Seized AP Phone Records

The AP reports:

The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government 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 Justice Department notified the AP on Friday.  More reporting from The Hill and ThinkProgress explains why DoJ wanted these records.

UPDATE: More from BLT here. It’s important to note that this is not the first time the federal government has obtained phone records in this manner.  It is, however, one of the few (if only times) the seizing of such records has become public.

UPDATE: And be sure to see Orin’s post above. [...]

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National Security Law in the News

National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers is a new book published by the ABA’s Standing Committee on Law and National Security and Northwestern’s Medill School of Journalism. Despite the title, the book should be of interest to a general audience, as it offers a concise, broad plain-language overview of the many timely issues at the intersection of domestic and international law. I wrote the chapter on piracy. Congratulations to the editors, Paul Rosenzweig, Timothy J. McNulty, and Ellen Shearer.

Here is the overview:

Written by seasoned experts, each chapter contains a summary of legal and policy issues of significance and is accompanied by an annotated bibliography for further reading. The book is divided into four parts:
Part I provides an overview of the basic issues of constitutional and international law including discussion of the scope of the president’s authority, the meaning and effect of the First Amendment, and the role of international law in American courts.
Part II turns the focus to the military and explores questions about military organization and operations.
Part III looks at the world of domestic law enforcement and counterterrorism.
Part IV covers homeland security issues.
An added bonus: a list of experts to contact for additional background information is included in chapter.

Some early journo reactions:

Every reporter on the national security beat should keep this book within reach.”

— Jane Mayer, Staff Writer, The New Yorker Magazine

Finally, we now have a clear-eyed primer on national security law that can serve as an essential reference for journalists as they try to cut through the spin and get to the truth.”

— James Risen, author, State of War: The Secret History of the CIA and the Bush Administration

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How Syria is Iran’s route to the sea

“Syria is Iran’s only ally in the Arab world. It’s their route to the sea.” So said Mitt Romney at the Monday debate. The Associated PressThe GuardianThe Telegraph, New York, U.S. News,  Brad DeLong, Rachel Maddow’s Maddowblog,  Comedy Central, and The Daily Kos promptly seized the opportunity to show off their superior geographical knowledge, pointing out that Iran has a coastline. The explicit or implicit explanation was that Romney does not even know basic geography. “Romney Flubs Geography” announced the A.P. headline on the Washington Post website. Readers in search of more sophisticated coverage  might have turned to Yahoo! Answers:

Q. Why did Romney say that Syria is Iran’s “route to the sea”? …when 1) Iraq stands between Syria and Iran, and 2) Iran already has the Persian Gulf, not to mention the Indian Sea?

A. Romney was speaking in the context of the debate topic on foreign policy and the sanctions restricting the finances and trade of Iran. Although Iran is indeed located on the seacoast of the Indian Ocean and the Persian Gulf, the international trade sanctions have restricted and impeded its ability to transport armaments and other goods through its own seaports. To defeat these trade sanctions, Iran has resorted to using its air transportation to transport goods through an air corridor in Iraqi airspace into Syria and its seaports, such as Latakia.

Fact-checkers who actually investigate the facts might have started with expert websites such as StrategyPage. A 2006 article titled Syrian Delivery System for Iranian Nukes details the extensive seaborne smuggling operations carried out by Syrian companies operating out of Syrian ports. The article concludes:

Iran was generous with its “foreign aid” because Syria provided support for terrorists Iran backed. Now Iran is keen

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Peter Gleick’s Possible Involvement in Drafting Fake Heartland Document: Either Not Investigated or the Relevant Results Not Released

After an investigation commissioned by the Pacific Institute, Peter Gleick has been reinstated as its President.  The Institute released a carefully worded statement saying that the investigation supported what Gleick had said “regarding his interaction with the Heartland Institute.”  Gleick had eventually admitted that he had pretended to be a board member of Heartland to obtain non-public materials from them.  Once Gleick confessed to this, that much was not in dispute.

But the part that was still open to dispute involved the fake document that was not obtained through Gleick’s “interaction with the Heartland Institute.”  Gleick claimed that someone anonymously sent it to him “in the mail.”  Thus, he was not claiming that it came through “his interaction with the Heartland Institute.”

Remember: based on the language, content, and document properties, Gleick was identified by some commentators as the likeliest author of that fake document even before Gleick came forward to admit his role in feeding both the real and the disputed (i.e., fake) Heartland documents to bloggers.  What a coincidence that the author of the fake document used some phrases that Gleick favors, that the document inflated Gleick’s importance, and that Gleick admitted passing the document to others, but yet he didn’t write it (or so he claims)!

So what does the Pacific Institute have to say about the fake document that everyone agrees did not come from Gleick’s interaction with the Heartland Institute?  Absolutely NOTHING!


The Pacific Institute is pleased to welcome Dr. Peter Gleick back to his position as president of the Institute. An independent review conducted by outside counsel on behalf of the Institute has supported what Dr. Gleick has stated publicly regarding his interaction with the Heartland Institute. This independent investigation has further confirmed and the Pacific Institute is

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Even Worse Than We Had Hoped: Inside Local TV News

Note: This is the second of two book “reviews” I’ve been hoping to do since about August, but my fall got so busy with actual paying work that they were both pushed off until the delightfully slow week between Christmas and New Years.  “First Thing We Do, Let’s Deregulate All the Lawyers” was the first, but Jonathan kinda beat me to that.  This is the second.


We’re all lawyers here, right?

If you’ve ever regretted your career choice, I have the antidote:  Paul B. Spelman’s “Even Worse Than We Had Hoped: A Journey Through The Weird Wild World Of Local TV News,” the memoir of a former local TV news reporter who is now a lawyer at the Federal Trade Commission (and until 2010 was an associate at my firm).

After leaving the truly small time as a radio reporter in Telluride, Colorado—where Christie Brinkley made a donation to his station in gratitude for Spelman’s lack of killer instinct in investigating the story of her ski accident, Spelman’s first assignment as an on-air TV reporter was in the perfectly named Whiteville, North Carolina, where he found a sign outside one of the 86 (no joke) local churches reading “Let Jesus Fix Your Achy Breaky Heart.” Spelman is “something of a curiosity” to the townsfolk as a “half-Jewish New Yorker whose only religious experiences came from attending classmates’ bar mitzvahs.” (I am confident that many Whiteville residents are, like you, puzzling over whether that should have been “B’nai Mitzvah.”) There, Spelman gains experience operating a one-man news “bureau,” or “one-man band” in industry argot, simultaneously serving as his own cameraman as he videotapes himself reporting from the scene day after day. Spelman explains how local reporters work to turn mundane events into seemingly hard-hitting stories—the [...]

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Are people with concealed handgun carry permits a menace to society?

According to the New York Times, the answer seems to be “yes.” An article in yesterday’s Times by Michael Luo collects some anecdotes about misbehavior by a few licensees in North Carolina. The Times article has some numbers in it, and it provides the number of North Carolinians with carry permits (240,000). After a thorough search of North Carolina records, the Times finds that about 1% of permitees were convicted of something, other than a traffic offense, over the past five years. Of these 2,400 convictions, by far the largest group is “nearly 900 permit holders were convicted of drunken driving, a potentially volatile circumstance given the link between drinking and violence.”

“Drunk driving” (which, I would guess, the Times uses as a shorthand for lesser offenses such as driving while impaired) is a serious crime in itself. But just because a woman has three glasses of wine with dinner at a restaurant, and then gets caught in a police checkpoint, doesn’t make her some “potentially volatile” person who is going to murder somebody in an inebriated rage.

In any large population (e.g., 240,000) there will be at least a small percentage who over a period of time are found guilty of some crimes. This does not mean that that population as a whole is dangerous. It would have been useful to compare the conviction rates of North Carolinians who have carry licenses with the convictions rates of those who do not. I suspect that the non-licensee crime rate would be much higher, especially for violent gun crimes.

In a 2009 article in the Connecticut Law Review, I collected data from Minnesota, Michigan, Ohio, Louisiana, Texas, and Florida. (The state data begin on page 564 of the article.) The data show that concealed carry licensees are much [...]

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Suggestions for your periodical reading list

Although on-line reading continues to grow, many people still enjoy old-fashioned printed periodicals. In the spirit of gratuitous advice, here are some suggestions for print subscriptions.

First of all, if you’re conscientious about registering for the frequent flyer program every time you step on an airplane, you may accumulate a few thousand points on various airlines which you fly only occasionally. You’ll never get to the level of a free ticket, but the points expire if you don’t use them. So use them for magazine subscriptions. I’ve been enjoying the daily Wall Street Journal that way for several years, and have used low-level points for dozens of other year-long or half-year subscriptions over the past decades.

Second, there’s a lot to be said for trying many different periodicals with one-time subscriptions. You may find a magazine that becomes indispensable for you (as The New Republic was for me, for about 15 years), but just reading something for a year or a half-year can broaden your knowledge, and then you can move on to something else.

Some category recommendations:

Newsweeklies: Back in the olden days of the 1970s, these were truly great. Then, the daily New York Times wasn’t available outside of the New York area, and the Wall Street Journal was sparse on non-business news. Time and Newsweek, and to a lesser extent U.S. News & World Report, provided in-depth, thoroughly-reported stories of the major issue of the week, the deep inside of presidential campaigns, and so on. These days, it’s hard to make a case for reading the remnants of those once-important magazines.

The Economist is still probably the most influential periodical in the world. If you read its U.S. coverage, you’ll quickly discover that the analysis is not nearly so sharp and insightful as the omniscient [...]

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USA Today Refuses to Correct its Misrepresentation of My Statements About the Individual Mandate Litigation

I regret that I must report that USA Today refuses to correct the misrepresentation of my views about the individual mandate litigation that I pointed out in this post. I pointed out the mistake in e-mails to Joan Biskupic, the author of the article in question, and the editors of USA Today. Both refused to issue any correction. They did invite me to state my view in a letter to the editor. However, after I sent in the letter, they refused to print it on the grounds that “[i]t is the paper’s policy not to disguise corrections as letters to the editor.” They were only willing to print a heavily redacted version that didn’t clearly indicate the nature of the error that Ms. Biskupic made in her characterization of my supposed “prediction” about what the Court will do. I refused to let them publish the letter under such absurd restrictions. The whole point of the letter was to point and out and correct her mistake.

Here is the original unexpurgated letter:

To Whom it May Concern:

In her April 14 article on the the Obama health care plan individual mandate litigation, Joan Biskupic incorrectly wrote that I had predicted that “the Constitution’s ‘original meaning,’ along with recent cases, would lead a majority of the [Supreme] court to reject the law.”

In reality, I never said any such thing. In the past, I have several times publicly written that the Court is more likely to uphold the law than strike it down, though the anti-mandate side also has a significant chance of prevailing. Ms. Biskupic also erred in stating that I predicted that Justice Anthony Kennedy would necessarily vote to strike down the mandate. I did not say that either.

Finally, Ms. Biskupic omitted crucial context in quoting my statement

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Misquoted in USA Today

One of the dangers of commenting on hot-button legal issues is that reporters will sometimes misquote you. That happened to me in today’s front-page USA Today story on the individual mandate litigation by prominent legal reporter Joan Biskupic, which cited me as follows:

George Mason University law professor Ilya Somin argued at a recent forum sponsored by the American Constitution Society that the Constitution’s “original meaning,” along with recent cases, would lead a majority of the court to reject the law.

“There is no logical way to uphold this mandate,” Somin said, predicting that Justices Thomas, Scalia, Kennedy and Alito would be inclined to strike down the law. Somin said the vote of Chief Justice Roberts is more difficult to predict based on his record.

In reality, I never predicted that a majority of the Court would “reject the law.” I actually said that the case could go either way, and that Kennedy and Roberts were likely swing voters. I also noted that some things Kennedy has said in recent opinions suggest that he wants to enforce limits on the scope of federal power. But I did not say that means that it’s clear he will vote to strike down. He could, I think, go either way.

I have on several occasions publicly said that the case could go either way, that the plaintiffs face an “uphill struggle” and that a victory by the pro-mandate side is more likely than the opposite. I think the Court should invalidate the mandate, but the justices do not always get these issues right, and sometimes go against logic.

At the same time, I believe that the anti-mandate side has a real chance to win and that the case is far from a slam dunk for the federal government. To put it in [...]

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Obama Campaign Adviser Participated on JournoList

Jared Bernstein, chief economist for Vice President Joseph Biden, served in 2008 as an economic adviser to the Obama campaign. At the same time, he was a member of JournoList, the controversial progressive email list.

Bernstein’s bio at Politico, which appears not to have been updated since 2008, states: “He is an economic adviser to the Obama campaign.”

He was known to many for his regular appearances on the financial channel CNBC. His primary employer in 2008 was the Economic Policy Institute, a pro-labor progressive think tank, but according to his bio when appointed to the Obama-Biden Administration, he also was a member of the Panel of Economic Advisers of the Congressional Budget Office.

Reached today at the Office of the Vice President, Bernstein revealed that his position with the Obama campaign was as something called a “surrogate.” “I was not paid by the campaign,” he explained. “They would call me from time to time to represent their positions, that side of the debate.”

Asked when he left JournoList, Bernstein replied, ‘‘I think I left the list around the time I came here.” Bernstein was announced as Chief Economist and Economic Policy Adviser to the Vice President-elect on December 8, 2008.

One question that has arisen in the last week is how closely JournoList members, not only discussed how to shape the news to advance the fortunes of Barack Obama, but coordinated with the Obama campaign. Jared Bernstein’s position as an unpaid adviser and surrogate shows that there was at least one direct link between JournoList and the Obama campaign.

Bernstein’s serving on the Economic Advisory Panel of the CBO is less worrisome, though it appears to violate Ezra Klein’s first rule for JournoList:

At the beginning, I set two rules for the membership. The first

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The Chronicle Review is Looking Into the June 27th Bellesiles Article

Late Monday afternoon, I received a one-sentence email from Liz McMillen, Editor of the Chronicle Review:

I just wanted to let you know that we are looking into the questions you have raised in your blog post Friday about Michael Bellesiles’s article for us.

Here is some background on Bellesiles’s June 27th article.

Here is some background on Bellesiles’s problems in 2000-2002. [...]

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Michael Bellesiles’s Newest Tale

In its June 27, 2010 issue, the Chronicle of Higher Education published an essay by Michael Bellesiles, Teaching Military History in a Time of War:

Yet the reality of teaching in wartime, most particularly at a working-class college such as Central Connecticut State University, is that war has touched the families of many of our students, and it is a tragic error to think that they have not experienced the staggering blow of loss and personal sacrifice.

That lesson came home to me with great force this last semester. . . . On the first day of my military-history class, after a discussion of the concept of democratic warfare, I asked my usual question about veterans or National Guard members present, and if any students had family members serving in the military. Ernesto (I have changed names out of respect for this family’s privacy), a shy but exceedingly bright student, smiled with evident pride as he mentioned that his brother Javier had recently enlisted in the Army. We discussed his brother’s reasons for enlisting, which mostly focused on a sense of gratitude to a country that had given their family refuge.

Two weeks later, the class discussed Baron von Steuben’s training of the American Continental Army . . . . Afterward, Ernesto told me that his brother had been sent to Iraq. He admitted he was worried about Javier’s safety, but had read several articles indicating that the war was winding down.

Then, after a class . . . [on the Mexican War], Ernesto told me that Javier had called him the day before and described his first encounter with enemy fire, which had been chaotic and without consequence. A few days later, Ernesto gave an amazing paper on a woman who had disguised herself as a man so

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How the “Independent” Fourth Estate Has Failed in its Critical Duty

Fourth installment in a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.

In a discussion on WAMU Radio yesterday, host Kojo Nnamdi noted that vagueness in the federal criminal law has recently made “strange bedfellows” of the political left and right. This same “emerging consensus” was also the subject of an insightful November 23 article by Adam Liptak, The New York Times’ Supreme Court reporter.

What has occasioned this coming together? As I mentioned here on Monday, individuals and organizations of all political stripes are realizing the danger to all when prosecutors are empowered with exceedingly broad and—worse—hard-to-define federal laws. A diverse coalition of groups—including the Heritage Foundation, the Federalist Society, the Cato Institute, the National Association of Criminal Defense Lawyers, and the ACLU, among others—have been sounding a clarion call against this species of executive expansion. They have pointed out that, from webmasters to fund managers, no segment of civil society is safe.

But this phenomenon is not new. As I document in Three Felonies a Day, the proliferation of vague laws—and prosecutions under them—began in the mid-1980s. Why has widespread recognition, especially from the American public, taken so long?

For one thing, the Department of Justice has a very effective public relations machine. With every major indictment, there is a press release and, not infrequently, a press conference that major national media typically attend with bated breath. Flanked by FBI, IRS, DEA, SEC, and members of the other myriad supporting agencies, prosecutors feed reporters the government’s side of the case, often a matter of hours after a hapless defendant has been rousted out of bed and paraded in the infamous “perp walk” (much to the delight of press photographers [...]

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Academics for the Second Amendment brief in McDonald

Available here. Co-authored by Joseph Olson (Hamline), David Hardy, and Clayton Cramer. Key point: From 1789 to 1860, popular and legal understanding of the Second Amendment became much less militia-centric. Well before Reconstruction, the Second Amendment was considered to be mainly a guarantee of a right to own and carry guns for personal protection. Back in 1998, I wrote a hundred-page article, The Second Amendment in the Nineteenth Century, 1998 BYU Law Review 1359, which focused mainly on cases and treatises. Olson/Hardy/Cramer have gone further, and brought forward extensive evidence about the understanding of the public and of elected public officials. Along the way, the brief also corrects some misunderstandings about the 19th-century Second Amendment which appeared in Justice Stevens’ dissenting opinion in Heller. [...]

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