The AP ‘Scandal’ And The Death Of Secrecy | VALID | #TWIBnation

The AP ‘Scandal’ And The Death Of Secrecy

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As a lawyer, I deal in secrecy. If there is a cardinal principle in lawyering, it’s that when a client tells you something in confidence, you place it in the vault. Or, if you prefer legalese, Rule 1.6 of the American Bar Association’s Model Rules of Professional Conduct says that “[a] lawyer shall not reveal information relating to the representation of a client” except in certain limited circumstances, such as “to prevent reasonably certain death or substantial bodily harm,” or to prevent the client from committing certain crimes.

So, if a client comes to me and says he’s going to kill his wife, I can rat him out; but if he comes to me and says he’s already done it, I am duty bound not to disclose that fact, even to the police. And if, in the latter case, I do rat him out, I will probably lose my license.

Most people accept the idea that secret keeping is an essential part of the attorney-client relationship, because clients will never tell their lawyers the truth unless they’re quite certain the lawyer will keep their secrets. Once they tell their lawyer the truth, the whole truth, and nothing but the truth, the lawyer can figure out how to resolve their problems; but a lawyer can’t give a client good–and thorough–advice unless the lawyer knows all the facts, even the ones that are potentially harmful to the client. So, in that context, secret keeping has some real social utility.

I get the sense, however, that liberals think secrecy serves no legitimate purpose in most other circumstances. With groups like WikiLeaks and Anonymous attaining demigod status on the left, it seems like we have adopted the McCarthy-era mantra that if you’ve done nothing wrong, you’ve got nothing to hide. While we scream like hell–and appropriately so–at any government intrusion into our own private lives, we grant free reign to organizations that profess to have the public interest at heart. When those organizations expose secrets, they’re heroes.

Of course, from a legal and ethical perspective, there’s a huge difference between government secrets and private secrets, although I note that WikiLeaks and Anonymous have no qualms about targeting private organizations like banks and churches when it suits their purposes. Nonetheless, the government has far fewer legitimate “privacy” concerns than do ordinary citizens and private institutions; and private exposure of government secrets does not raise the same constitutional concerns as government intrusion into private matters.

But are we really prepared to say that the government has no legitimate reason to keep secrets under any circumstances? Clearly, the answer is no. The government employs millions of individuals whose employment and medical records are entitled to the same confidential treatment as yours and mine; they are, after all, private citizens, even if they’re employed by the government. And the government employs lawyers, too. Surely government lawyers have the same obligation to protect the confidentiality of their clients’ communications as private lawyers have. If the government cannot keep secrets under any circumstances, does that mean public defenders–government employees hired to provide legal representation to private individuals–should not be able to keep their clients’ confidences? That’s madness.

Far more complicated, however, are the situations in which the government claims to have the right to keep secrets for purposes of national security. In such circumstances, ordinarily the government’s purpose isn’t so much to keep secrets from us, as citizens, but to keep secrets from potential enemies. But, of course, it can’t very well disclose sensitive information to its citizenry without disclosing it to the world at large, and so it tries to keep certain types of information off limits altogether, even though the public interest in such information is considerable. Unfortunately, the amorphous nature of “security threats” is such that the government’s use of that rationale can rarely be tested for accuracy. It’s very easy for the government to claim it’s withholding information on the basis of national security, but often there’s virtually no way to evaluate that claim.

Still, it’s hard to argue that when the government gets information about security threats–say, planned terror attacks–from an informant overseas, the government ought to be able to keep that informant’s identity secret. And if someone within the government happens to leak information that might tend to identify an informant, it stands to reason that the government should investigate the leak and, if appropriate, discipline or even prosecute the individual responsible for the leak.

That’s exactly what happened in the now infamous case in which the FBI issued a subpoena to the Associated Press to obtain telephone records. As more thoroughly explained by Bob Cesca at the Daily Banter, Raine Koch at the Four Freedoms Blog, and blogger Quad City Pat, the matter began last year when someone leaked details about a foiled al Qaeda plot in Yemen to AP reporter Adam Goldman. Apparently, as the story evolved, certain details of the informant came out, including his nationality, which could, theoretically, put the individual in danger. Congressional Republicans demanded an investigation into the leak, and the Administration acceded to Congress’s demands.

Now, in the process of that investigation, the FBI has subpoenaed records of the use of some twenty telephone lines at the AP over a two month period. The FBI did not, as some have suggested, tap phone lines, listen in on telephone calls, or otherwise obtain the substance of any conversations; rather, the information apparently was limited to telephone numbers, and dates and times of telephone calls. In other words, the purpose of the subpoena was to determine who might have communicated with individuals at the AP during the relevant time period.

More to the point, despite the histrionics coming from the likes of New York Magazine (which accused the Administration of “spying” on the AP) and the Guardian, the Administration didn’t “seize” any records. It issued a subpoena–which is part of the judicial process–and obtained the information legally. This is what happens in our adversarial justice system. Each party to a dispute has certain legitimate interests to protect, and so each uses the legal means available to it to protect those interests. Here, both parties assert the right to keep certain information secret: the government wants to punish a leaker for disclosing information about an informant, and the AP wants to keep its sources confidential. In the end, though, neither the government nor the AP gets to decide who wins and who loses. Instead, it is for a court to decide which party has the stronger claim.

But the challenging question in this case is not so much whether the mere issuance of a subpoena is some form of ham-fisted government abuse, but whether we believe anybody–whether private individuals, the media, or the government–has any right to keep secrets in the first place.

David Von Ebers

An evil trial lawyer from Chicago, which makes me almost as bad as Barack Obama himself. Except, I am a Cubs fan, unlike our President, and so, as the kids say, I AM SHAME. I blog about legal issues, politics, sports, music (that long-haired rock 'n roll music all the kids are into), and, frequently, the interaction between any and all of the above. When I'm not busy undermining the Constitution or circumventing your freedoms, I run, watch too much sports on the teevee, and hang out with my long-suffering wife and three kids.

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6 Comments

  1. Randle Aubrey May 16, 2013 at 4:51 pm

    From what I understand, the DoJ issued the subpoena for the records, but didn’t give the AP an appropriate amount of time to respond to or protest the scope of the records collected, which is where a lot of the controversy is stemming from. Is this correct?

    • David von Ebers May 16, 2013 at 5:02 pm

      That’s exactly right, and I’m working on a follow-up post addressing that issue. I certainly don’t mean to imply the AP’s legal objections are without merit.

  2. Randle Aubrey May 16, 2013 at 5:54 pm

    Oh, of course not! The facts on this story, as well as the IRS one, are coming out faster than people can keep up with them. Par for the course in the 24-hour news cycle, I suppose. Thanks for keeping us informed!

  3. Barbara Ghoshal May 17, 2013 at 1:09 pm

    Your explanation of this issue has been very helpful to me, as I try to understand all the claims and counterclaims. Thank you.

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