The following post by Dave Maas was originally published on Electronic Frontier Foundation’s  blog Deeplinks, on May 17, 2013.

To steal a line from Rep. Virginia Foxx, the gentlewoman from North Carolina: This is our shocked face.

Far be it for us to complain about Congress making noise about press freedom and improper surveillance, but c’mon—it’s about darned time someone other than Sen. Ron Wyden and Rep. Zoe Lofgren stood up for civil liberties. It’s just too bad that something like the Department of Justice’s subpoenas for Associated Press phone records has to happen first before our elected leaders take notice.

But, better late than never. Shock is reverberating through the halls of Congress, particularly in yesterday’s Justice Department oversight hearing in the House Judicary Committee, where Attorney General Eric Holder denied knowledge of (and culpabality in) the AP leak investigation. Some of the outcry is policital, for sure, with Republicans jumping on the opportunity to pair AP subpoena revelations with news of the IRS targeting conservative groups and new information related to the Benghazi attack. We’ll stow our cynicism for now and embrace the outrage where we find it, especially if it results in the passage of the newly introducedTelephone Records Protection Act.

So how much outrage is there? We used the Sunlight Foundation’s handy tool, Scout, to search Congressional speeches to measure the snowballing fury at the DOJ among members of Congress. Here are some of the highlights.

Rep. Ted Poe (R-TX) in a floor speech titled “State Secrets vs. Freedom of the Press”:

Mr. Speaker, when I went to the Soviet Union in the 1980s, the Communist leaders told me that they believed in and had a free press and they also had free speech. However, I also learned that Soviet law prohibited these freedoms when they jeopardized state secrets–or national security, as we call it in America. The state-secret provision was so broad the Soviet press and speech were gagged and shackled. They certainly were not free.

Now we learn that our Department of Justice improperly seized without notice phone records of over 100 Associated Press journalists–all in the name of national security concerns.

To me, this is a clear violation of the spirit and letter of the First Amendment. These actions border on the Soviet method of legalizing these freedoms but never allowing them. So it’s time to revisit U.S. law and require in all cases judicial review where these types of records are seized.

We cannot allow our government to arbitrarily abolish the First Amendment in the name of “state secrets.”

Sen. Marco Rubio (R-FL):

Then the revelation on Monday that the Justice Department of the United States–think about that, the chief law enforcement agency of the country–had issued this blanket search of the phone records of I think the Nation’s largest reporting group, the Associated Press. I understand if they were going after a leak that endangered America and security; that is one thing. We can have a debate about that. But they went much further than that. It was a blanket request of all of these phone calls, including the switchboard. Pretty outrageous.

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When one power is constrained (or simply not broad enough), interpret other powers to be unrealistically and shockingly expansive and shield that interpretation from public scrutiny…at least that’s what the FBI would tell you.

The FBI’s annual report on its use of spying powers released late last month reveals a meteoric 900% rise in the use of Section 215 of the PATRIOT Act under the Obama Administration (see graphic). This provision, reauthorized in 2011, allows the FBI to force unwilling businesses to hand over “any tangible things” simply upon showing the closed-door Foreign Intelligence Surveillance Courts (FISA court) that they are “relevant” to an “authorized investigation” into “international terrorism or clandestine intelligence activities.” In a break with foundational Fourth Amendment principles, the person whose “tangible things” are sought need not be suspected of any criminal activity themselves. The FBI merely must show the FISA court that those “things” sought are “relevant” to an investigation into international terrorism.

So just how broad is this power?

A few courageous senators in the know have hinted that Americans would be “stunned” by the scope of the spy powers claimed under Section 215; the only problem is the government has kept this interpretation secret. Not only does this lack of transparency prevent public discourse on what the limits of the government’s powers should be, it also drips with irony under a president that denounced such broad powers as a “fishing expedition” while in the Senate.

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5/16, Daniel Halper, Weekly Standard, Congressman: Justice Dept. Wiretapped the House of Representative’s Cloak Room

5/16, Josh Peterson, The Daily Caller, DOJ sought to surveil several thousand U.S. citizens in 2012

5/16, Alina Selyukh and Deborah Charles, NBC News, CISPA cybersecurity bill backers hope second time’s a charm

5/16, Charlie Savage, New York Times, Debating the Legal Basis for the War on Terror

5/16, Somini Sengupta, New York Times, Concerns Arise on U.S. Effort to Allow Internet ‘Wiretaps’

5/16, Brad Knickerbocker, Christian Science Monitor, US loses track of terrorists in witness protection: Poor data sharing blamed

5/15, Matthew Alexander, MSNBC, New WikiLeaks film discusses government secrecy

In a press conference Thursday, May 16, at the White House, President Obama stated he had no regrets over the AP scandal:

Obama said he made “no apologies” for being concerned about national security but that the free flow of information was important to him as well.

What exactly is this “free flow” of information? According to The Guardian blogger Glenn Greenwald:

If you talk to any real investigative journalist, they will tell you that an unprecedented climate of fear has emerged in which their sources are petrified to talk to them. That the Obama administration has prosecuted double the number of whistleblowers under espionage statutes as all previous administrations combined has already severely chilled the news gathering process. Imagine what message this latest behavior sends to journalists and their sources: that at any moment, the phone records of even the nation’s most establishment journalists can be secretly obtained by the DOJ, which has no compunction about doing so even in the most extreme and invasive manner.

This mind set is obviously not very conducive to a “free flow” of information. So apparently, President Obama’s “free flow” of information is only pertaining to that information which benefits his administration:

The Obama administration does not mind leaks of classified national security information; to the contrary, they love such leaks and are the most prolific exploiters of them. What they dislike are leaks that they don’t approve and/or which don’t glorify the president.

Interestingly,  the media is suddenly up in arms about this abuse by the Obama administration. This passage from the Washington Post had Greenwald laughing audibly:

President Obama, a former constitutional law lecturer who came to office pledging renewed respect for civil liberties, is today running an administration at odds with his résumé and preelection promises.

The Justice Department’s collection of journalists’ phone records and the Internal Revenue Service’s targeting of conservative groups have challenged Obama’s credibility as a champion of civil liberties – and as a president who would heal the country from damage done by his predecessor.

Greenwald’s response?

You don’t say! The Washington Post’s breaking news here is only about four years late. Back in mid-2010, ACLU executive director Anthony Romero, speaking about Obama’s civil liberties record at a progressive conference, put it this way: “I’m disgusted with this
president.” In the spirit of optimism, one can adopt a “better-late-than-never” outlook regarding this newfound media awakening.

The news media should take a several steps back from its cozy relationship inside the Beltway and return to its adversarial position as a watchdog of government. We, the people, need the media on our side, not the side of the politically elite.

• 5/16, David Kravets, Wired, Cops Should Get Warrants to Read Your E-Mail, Attorney General Says
• 5/15, Daniel Klaidman, The Daily Beast, How GITMO Imprisoned Obama
• 5/15, Glenn Greenwald, Guardian (UK), The major sea change in media discussions of Obama and civil liberties
• 5/15, Sahar Aziz, CNN, Muslims to Tea Party: Welcome to our world
• 5/15, Editorial Board, New York Times, After Attacking The A.P., a Peace Offering
• 5/15, Charlie Savage, New York Times, Criticized on Seizure of Records, White House Pushes News Media Shield Law
• 5/13, Gar Smith, Berkeley (CA) Daily Planet, Drones or No Drones? The Debate Drones On

Important criticism of the Justice Department’s suppression of press freedom remains inadequate.

Finally finding its voice after five years of relative silence, the mainstream establishment press finally woke up this week to criticize the Obama administration’s assault on the First Amendment. But, while this criticism is important and necessary, it remains days (indeed, years) late, and much more than merely a dollar short.

Is this America or China?

The Justice Department’s seizure of Associated Press telephone calls without prior notice, in violation of fundamental First Amendment principles, and extending the Obama administration’s already hypocritical and authoritarian crackdown on government whistleblowers, is indeed a travesty worthy of this week’s onslaught from the press, Congress, and the public. Reaching even beyond the office phone lines of reporters and editors to also invade the privacy of their home and cellular calls, the Justice Department’s tactics seem more fitting in China than the United States.

Noting that “[b]y obtaining these records, the DOJ has struck a terrible blow against…freedom of the press and the ability of reporters to investigate and report the news,” the Electronic Frontier Foundation also noted the broader need to “require more than a mere subpoena…whether the target is the news media or an ordinary citizen.” Few others, however, beyond Glenn Greenwald, have recognized that the assault on press freedom is merely an extension of a longstanding policy shared by presidents from both of the major political parties.

To its credit, the Washington Post expanded the context of its reporting, writing this week that:

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Over the next several weeks, the Senate Judiciary Committee will consider Comprehensive Immigration Reform (S744), which would include a mandatory E-Verify system.  E-Verify is an internet-based program accessed by employers when processing new hires.  It compares information from an Employee’s Eligibility Verification Form I-9 to data from U.S. government records.  The potential for E-Verify to become compulsory is quite controversial for several reasons – namely its disregard for personal privacy, the unnecessary obstacles it imposes to employment, and the fundamental change that it would signify in the relationship between U.S. government and U.S. citizen.

While allegedly created to target undocumented individuals, E-Verify would negatively affect documented U.S. citizens as well.  Every job applicant would have to face an E-Verify background check, and unless the system is 100% accurate 100% of the time, these background checks will become a nightmare.  Chris Calabrese, Senior Legislative Counsel with the American Civil Liberties Union explains:

 When you make a giant list of everybody who’s able to work in the United States, that list has to be completely accurate, because if there are mistakes in it, the result is those mistakes – those mistaken people can’t work.

These citizens will be required to petition the government to correct the mistake, creating a bureaucratic nightmare that will likely stall their job hunting process by weeks (if not longer).  Calabrese calls this the “prove yourself to work” system that will hurt ordinary citizens.  This signifies a fundamental shift in relationship between government and populace – no longer are we innocent until proven guilty. We are now guilty until proven worthy of a job.  Gone will be the days of applying for a job, waiting on a quick background check, and becoming employed – now all citizens will have to wait for I-9s to be verified against a massive list of personal information housed by the government.

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• 5/15, Joan Biskupic and David Ingram, Reuters, Analysis: Once a beacon, Obama under fire over civil liberties
• 5/14, Audie Cornish, NPR, Justice Department Under Fire For IRS Audits, AP Phone Logs
• 5/14, Charlie Savage, New York Times, Lawyers Press Pentagon to Abide by Detainee Deal
• 5/14, Editorial Board, Washington Post, Damage to press freedom likely outweighs national security gain
• 5/14, Charlie Savage and Scott Shane, New York Times, Justice Dept. Defends Seizure of Phone Records

This commentary was written by John W. Whitehead, president of the Rutherford Institute. It was originally published on May 13, 2013.

“If you’re not a terrorist, if you’re not a threat, prove it. This is the price you pay to live in free society right now. It’s just the way it is.”—Sergeant Ed Mullins of the New York Police Department

Immediately following the devastating 9/11 attacks, which destroyed the illusion of invulnerability which had defined American society since the end of the Cold War, many Americans willingly ceded their rights and liberties to government officials who promised them that the feeling of absolute safety could be restored.

In the 12 years since, we have been subjected to a series of deceptions, subterfuges and scare tactics by the government, all largely aimed at amassing more power for the federal agencies and extending their control over the populace. Starting with the wars in Afghanistan and Iraq, continuing with the torture of detainees at Abu Ghraib and Guantanamo Bay, and coming to a head with the assassination of American citizens abroad, the importing of drones and other weapons of compliance, and the rise in domestic surveillance, we have witnessed the onslaught of a full-blown crisis in government.

Still Americans have gone along with these assaults on their freedoms unquestioningly.

Even with our freedoms in shambles, our country in debt, our so-called “justice” system weighted in favor of corporations and the police state, our government officials dancing to the tune of corporate oligarchs, and a growing intolerance on the part of the government for anyone who challenges the status quo, Americans have yet to say “enough is enough.”

Now, in the wake of the Boston Marathon bombing, we are once again being assured that if we only give up a few more liberties and what little remains of our privacy, we will achieve that elusive sense of security we’ve yet to attain. This is the same song and dance that comes after every tragedy, and it’s that same song and dance which has left us buying into the illusion that we are a free, safe society.

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