Government tracking of reporters' phone records: chilling in every respect

By Lee Russ

Tuesday, May 16, 2006 at 04:56 PM

When you call something "chilling" it means that it sends a kind of shock through you because of its insidiousness, danger, or the like.  In constitutional law, a "chilling effect" is the voluntary suppression of certain behavior or speech as a result of a government action that makes you thin that the behavior or speech is going to get your butt in hot water with the government.

Recent reports about the federal government tracking the phone records of reporters who write stories on subjects the government doesn't like are chilling in both respects.

If you haven't followed it, heres a quick summary:
On Monday, an ABC blog reports

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.

Later that day, the FBI denied that it routinely tracks calls made to and by reporters.

Today, the same ABC blog responded to the FBI denial by reporting:

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.

{Ed. Note: Apparently by pure coincidence, at the same time this is going on in the US, there is a serious furor in Germany over a a confidential government report that the German foreign intelligence service has been keeping files on journalists and paying reporters to spy on their colleagues.  Thank God for the fall of the wall and the victory for freedom, eh?}

For the record, the FBI denial isn't much of a denial.  If you read the report, you'll see that the FBI denies that it is "tracking" reporters phone usage by saying it isn't "routinely tracking" reporters' phone usage.  That "routinely" qualifier is one B I G qualifier.  There's no reason for them to do it "routinely," only when they think there's a reason.

So lets see: the government has billions of phone records from ordinary citizens, it has some unspecified program for surveillance of calls made to or from Al Qaeda "suspects" in the US, and it is now resorting to tracking down leaks by its own employees by scrutinizing the phone records of the reporters who wrote stories about the leaked info.  That's not likely to have a "chilling effect," is it?  Just imagine the conversation between a reporter and a government employee who knows about a serious government impropriety:

Reporter: Hey, Joe, I hear the undersecretary has come into some...uh..mysterious money lately.  You wouldn't know anything about that, would you?

Joe: Huh?  Wh..why are you calling me?  Are you calling me from your office phone?  Jesus!

Reporter:  Relax, Joe, it's not my office phone, it's my girl friend's phone, at her apartment.  Can you confirm reports that the Secretary has bought himself a multi-million dollar estate in the South Pacific, complete with a couple of young female "maids?"

Joe: God, your girl friend's apartment?  You probably call there from your office, from your own apartment, all the time.  They'll link that number in less than 10 minutes!

Reporter: Joe, don't be paranoid, just tell me if...

Joe: Click.

It's the F'ing definition of chilling effect!  These White House clowns have so little regard for the Constitutional system we've developed here over two hundred years that they have no right to hold office.  To hold office, you have to swear to uphold the Constitution.  These fools don't uphold it, they hold it up...to contempt, to ridicule.

It's the system that's important, not their damn need to get revenge on some mid-level bureaucrat who's ten times as patriotic as they are, who is willing to risk his career to protect the Constitution when the White House wouldn't risk a dime to save that "damned piece of paper" as Bush is reported to have called it in a snit during a meeting.

Some people, even some who are pretty conservative, seem to get it, even though the public at large doesn't seem to have figured it out yet.

Check out the transcript of a portion of Joe Scarborough's show from Monday, dealing with the government use of reporters' phone records:

SCARBOROUGH:  (INAUDIBLE)... let`s bring in right now Bob Jensen, journalism professor at the University of Texas, and Republican strategist Jack Burkman.

Professor, let me begin with you.  Talk about the possibility that the federal government is now mining through all these phone records, these billions of calls, to track down sources for stories.  What impact does that have on journalists` ability to root out corruption in the government?

BOB JENSEN, UNIVERSITY OF TEXAS:  Well, of course, it closes down sources.  Anybody who`s in the government who knows they`re possibly going to be identified this way is not going to talk to reporters.

I think we should keep this in the context of the larger Bush administration contempt for democracy.  We`ve seen the Bush administration doesn`t don`t care about due process.  It`s willing to engage in  warrantless wiretapping.  We see that they have a fundamental contempt for the balance of powers.  And whatever anybody thinks of journalism--and I`m as critical as anyone of journalism`s failure to hold power accountable journalism is part of a system in which we have checks and balances.

And the concentrated power in the executive branch, which is a bipartisan problem ever since the end of World War II, is really at issue here.  And the Bush administration, more than perhaps any other, has tried to concentrate that power.  Journalists are one check on that.

JACK BURKMAN, REPUBLICAN STRATEGIST:  I think it`s very interesting, Joe.  No court--I would ask the professor, has any federal district judge ever ordered the president to stop?  Has there ever been an order of contempt?  Has there ever been an order of injunction?  I`ve never seen so many legal analysts...

(CROSSTALK)

SCARBOROUGH:  OK, but Jack Burkman, I got to ask a question, though.  You certainly understand the danger of the federal government being able to go through phone records and figure out what whistleblowers are contacting what journalists.  It will shut down the ability of people to root out corruption in government, won`t it, Jack?

BURKMAN:  Well, Joe, we can`t--no.  You can`t extrapolate that kind of a conclusion every time one  phone record or a handful of phone records. what we need in this country is a realistic conception of civil liberties, which we have always had.  If you look at what Abraham Lincoln did or George Washington did or FDR did...

SCARBOROUGH:  OK, but let`s talk about the Nixon example that I used, though, Jack.  If Woodward and Bernstein had had their phone records checked, if the federal government had the ability to track it down, they would figure out who all their sources were, and Watergate would have never happened and Richard Nixon would have served out his second term.

BURKMAN:  Joe, I think that`s out of context because you`re talking about a president responding against his political enemies.  This is a president trying desperately to defend his country.  There`s a war on American soil for the first time since 1812.  I would ask you this.  Let`s ask the dead.  Can we ask the ghosts of the 3,100 dead in the World Trade Center if they think George Bush is going too far?  Let`s--I wish I could I wish I could invoke and summon the ghost of Barbara Olson tonight to ask her if she thinks that the president has gone too far.

SCARBOROUGH:  Let me have Bob Jensen respond to that.  Bob...

(CROSSTALK)

SCARBOROUGH:  ... ends justify the means?

JENSEN:  I would like to think that Barbara Olson and others who died on 9/11 would be ashamed of this kind of cheap rhetorical trick.  Listen, every president who ever tried to consolidate power did it by claiming he was protecting the American people.  Richard Nixon made the same claim.  The point is that we need a check on concentrated power.  You know, it`s conservatives...

(CROSSTALK)

JENSEN:  ... traditional conservatives are the ones who are supposed to...

(CROSSTALK)

BURKMAN:  You`re forgetting something.  You`re drawing your own conclusions.  You`re putting yourself in the shoes of the federal courts.  If somebody wants to bring a lawsuit, and many have, it falls on the federal district courts, the federal appellate courts and the United States Supreme Court to order the president.  I can guarantee you, if this White House is ordered to stop any of these practices or there`s a contempt order or an injunction, the prosecute will follow the court order.  There has been no such order.

SCARBOROUGH:  Bob Jensen, what are about the argument?  Because I`m very offended by this type of program and by what we found out last Thursday, but I`ve heard all weekend people saying to me, If there were a problem, then a federal court judge would have stepped forward and issued an injunction and stopped the White House.  How do you respond to that charge?

JENSEN:  Well, federal courts can only hear cases that are brought to them.  This particular revelation was on a Web site today.  So whether or not there will be a court order or a court proceeding, we have to wait and see.  There have been...

(CROSSTALK)

JENSEN:  One of the things we have to realize is that the post-9/11 climate, the federal courts have been very timid.  I`m critical of the federal courts, as well.  The Supreme Court took way too long to, for instance, critique the Bush administration for their illegal detentions of citizens.

BURKMAN:  Well, you...

JENSEN:  This is a problem, and it`s a problem of concentrated executive power.  And here I want to make it clear I`m not partisan.  This is a post-World War II problem of executives concentrating too much...

(CROSSTALK)

SCARBOROUGH:  And Bob, let me follow it up there.  And Jack Burkman, I direct this to you.  It`s amazing how, during the 1990s, Republicans like myself that were sitting on the Judiciary Committee, the Government Reform and Oversight Committee in Congress were offended by the fact that the Clinton White House kept getting more and more power, got more power domestically, more power internationally.  Janet Reno was doing the roving wiretaps.  We were all offended by roving wiretaps, but it seems to me there is nothing this White House can do that can offend conservative Republicans...

BURKMAN:  Oh, there`s some...

SCARBOROUGH:  ... when it comes to the concentration of power in the executive branch.  Doesn`t that scare you at all?

BURKMAN:  Well, Joe, I full concede there`s some partisanship, and that`s just the way it is.  But I will tell you...

SCARBOROUGH:  Does it scare you?

BURKMAN:  In part.  But there`s a different circumstance.  You have to understand...

SCARBOROUGH:  What if Hillary Clinton has all this power on January the 21st, 2009?  You going to be nervous then?

BURKMAN:  No, if circumstances are the same, if--I--I may have--if circumstances are the same and there`s a war on the soil of this country, I would encourage her strongly to do the same thing.  Mr. Clinton did not...

SCARBOROUGH:  All right, we`re going to have to leave it there.  Thank you, Jack Burkman.  Thank you, Professor Jensen.

Jack Burkman.  Republican Strategist.  Authoritarian apologist.  Shill for the devious and vicious.  Oily exploiter of the horror of 9/11.  In short, everything you'd want your stretegist to be

...except committed to a Constitutional democracy.

...if you wanted to live in a dictatorship.

We're teetering on the edge and the Bushes and Burkmans of the world are pushing just as hard as they can.  Which I think is just a little bigger problem than illegal immigration.  Certainly than gay marriage or that joke of a theft of Christmas.