I have now perused the New York Times and the Washington Post, and I checked out Steve Benen, Steve M., Jeralyn, and Kevin Drum. All of this, in an effort to get my head around the controversy about the Department of Justice’s subpoena of the Associated Press’s phone logs over a two month period last May. There are a lot of angles to this story and I feel like I need a timeline to really suss it out.
The key to understanding whether this was justified is going to be John Brennan, who is now the Director of Central Intelligence, but who was then the president’s National Security Advisor. The most important component of this whole thing was concern for the safety of a CIA agent who had penetrated an al-Qaeda cell in Yemen. There were two elements to this concern. The first was to keep knowledge that we had an agent from becoming public knowledge, and the second was to protect the agent once the first effort failed.
When the Associated Press ran a story on a foiled plot by the Yemeni cell, John Brennan was accused of being the source. But that was the end of a process, and a lot had been going on behind the scenes with the White House trying to convince the AP not to publish.
The political element of this story is evident from the AP’s reporting, which emphasized that the administration had been telling the public that they knew of no credible threats from al-Qaeda at the same time that they were dealing with the threat in Yemen. Seemingly caught in a lie, John Brennan decided to do some damage control by having a conference call with some former counterterrorism folks in which he divulged that the government had had some “inside control” of the operation which assured that the public was never in any real danger. One person on the call, Richard Clarke, then went on television and made a “logical leap” that the CIA had penetrated the cell.
Once that information was public, the agent’s life was in danger and the operation was blown. Of course, the operation had been successful up to that point, but we lost a valuable asset.
While it may appear that it was Brennan who blew the asset’s cover in an effort to conduct some election year spin, he knew that the AP article was about to be published which would blow the asset’s cover anyway.
Then we get to the investigation. The Republicans wanted a Special Investigator. Attorney General Holder appointed Ronald C. Machen Jr., the U.S. attorney for the District of Columbia, to investigate the case, and he is who obtained the subpoenas.
The purpose of the subpoenas was to identify the leaker and John Brennan was a suspect in the case and was interviewed by the FBI. As I understand it, the subpoena only covered phone logs, not actual wiretaps or recordings of phone calls. The FBI may have chosen 20 different AP-connected phone lines in an effort to find a particular number connected to Brennan or other suspects. That doesn’t strike me as unreasonable, even though it is much broader than anything known to happen in the past.
But another element of controversy involves the rules that DOJ is supposed to follow. They argue that notifying the AP would have compromised the investigation. I am struggling to understand why this would be true since the phone logs either have the number they’re looking for or they don’t, but it’s hard to see how a suspect could destroy the evidence during any delay in obtaining the records.
I also don’t quite understand why the AP was notified on Friday. They should have been notified within 45 days, and absolutely should have been notified within 90 days (no exceptions) and that doesn’t seem to have happened. The Grand Jury hasn’t indicted anyone, although perhaps that is imminent.
So far, it’s this delayed notification that seems most troubling although the subpoenas definitely have a chilling effect on all news organizations. If I am right that the government was merely trying to find a particular phone number, the two-month window on 20 phone lines doesn’t seem unreasonable. They were trying to verify that their suspect had been in contact with someone at the AP. If, on the other hand, they were just doing a huge dragnet of all contacts to try to identify a suspect, that seems to violate their own rules.
So, basically, my two main concerns are that I don’t understand why a request for phone logs would compromise the investigation and I don’t understand why the notification took so long. Those are questions I’d like to see answered.
the Dems passed a bill that would have prevented the DOJ from being able to get this information.
the bill died in the GOP filibustered Senate.
the MSM can choke on it
The Department of Justice is an executive department. It is possible for executive departments to show appropriate respect for the Constitution regardless of what Congress passes.
Eric Holder has screwed up bigtime. Because, according the the DOJ regs, the AG must sign of on this kind of subpoena (if it was indeed a subpoena and not an FBI national security letter to the phone companies).
This is flat-out the actions of a runaway security state. Are the elected officials going to rein it in or not?
Eric Holder has screwed up bigtime.
Eric Holder had nothing to do with this; he recused himself, and the subpoena from the special counsel was approved by a guy named Cole.
Can we please have a fact-driven discussion instead of a narrative- and personality-driven one?
So we have an administrative(?) subpoena issued by a special council to the telecommunication companies? A subpoena that does not require any reasons and the phone companies are prevented from notifying their customers. Because the law passed to cover Bush’s warrantless wiretapping provided immunity to the phone companies.
The fact that Eric Holder had to recuse himself is part of the problem.
A fact-driven discussion would be nice. Those facts have been coming out slowly and piecemeal. I missed the special counsel involvement.
Because the law passed to cover Bush’s warrantless wiretapping provided immunity to the phone companies.
The law in question was passed in 1986. http://en.wikipedia.org/wiki/Electronic_Communications_Privacy_Act
This has nothing to do with USA PATRIOT or Telecom Immunity.
The fact that Eric Holder had to recuse himself is part of the problem.
Why? Oh, I see – you’re working from the assumption that the reason for the recusal had something to do with a law Obama voted on, right?
I have no idea why he had to recuse himself on this particular case. But it breaks the chain of responsibility for this decision. Who does the special counsel answer to?
Chris Hayes just talked about this.
Holder recused himself because he was one of the 550 targets of the investigation. He knew the information that was leaked when it was leaked, so he was on the list of potential leakers.
The special counsel answers to this Deputy AG Cole, who is filling in for Holder on this case.
Thanks. That’s a little clearer.
Thank you, Joe. Essentially, this story and the other recent scandals are all being reported as if Barack in his best Dr. Evil cackle has been rubbing his hands together and doing this very stupid shit.
Obama is probably finding out about these “scandals” the way you and I are finding out: in the news.
Was it yesterday that Rubio said that Obama should fire the head of the IRS, not knowing that Congress has not allowed anyone to be appointed its head?
What people have to understand is that the government is big. There are lots of people in management positions who were brought in under Republicans who are still there, and there is a history of sabotaging administrations by members of the permanent government. Remember Linda Tripp? Also, if you’ve familiarized yourself with the State Dept under JFK you can find more examples.
This isn’t a defense of Obama per se. It’s a description of how administrations can be destabilized. The first step is to demonize the President by creating scandals within the government and using them to personally demonize the President. There are even rumblings that the stupid spy scandal in Moscow is a reflection of Obama’s incompetence. More likely, it was a deliberate psyop of some kind, either directed at the Russians or the American public. As many have pointed out, Watergate was just another coup be the CIA. Sometimes you don’t have to shoot uncooperative politicians.
A psyop directed at the Russians? Really? Here is what the NY Times has to say about it:
I guess that today’s CIA is so busy assassinating Muslims with drones it doesn’t have the resources to train people how to do basic spying.
Some people look at al Qaeda operatives and see terrorists.
Some look at those same people as just see Muslims.
I guess we know which side of that divide you’re on.
I am unaware of the US killing anyone with drones who is not Muslim.
It’s highly likely that most people killed in drone strikes are not al Qaeda or another “brand” of terrorist. It is called collateral damage. That’s why they have the rule that all combat aged males killed in a drone strike are simply assumed to be terrorists, until proved otherwise after being killed. In any case, we know that plenty of women and children get killed. That’s why I wrote “Muslims”, not “terrorists”.
Also, what does any of what you wrote there have anything to do with the post your were replying to?
I’m done with replying to your posts, following the example of several others.
If this is not White House policy, then the White House should be able to walk it back before it gains momentum.
It seems the the folks involved in the disclosure of information itself were John Brennan and Richard Clarke. Unless there are other disclosures in that time period. If the CIA is involved in destabilization, John Brennan would be the guy with the responsibility to rein it in.
But the White House is going to have to move quickly to avoid the appearance that it is punishing AP merely for scooping the White House release with a story.
It might also be time to exert some more direct control over CIA, which might be exploiting plausible deniability to maintain independence from oversight and control.
the Dems passed a bill that would have prevented the DOJ from being able to get this information.
…without a warrant. They DoJ still would have been able to get the information, but there would have been a judge saying exactly what they were allowed to search for and how they could use it, and providing some oversight by a disinterested party.
Yes, screw the GOP and the AP, but there are still important issues here.
Aside from the facts of the story, isn’t this kind of snooping exactly what the PATRIOT Act enables?
if I’m wrong, let me know. But I guess I don’t understand the shock an surprise, since I thought this was settled policy, renewed as recently as 2011.
No one knows the exact legal justification yet because no one knows what the telecom companies got from DOJ.
False
The legal justification is the ECPA.
You forget one thing. Governments leak classified stuff all the time, when it makes them look good. Anyway, what happens if Brennan, for what ever the reason, was the leak in this case? Will we ever really know?
The leak is bad…burning an asset is bad, but to my mind the real issue here is that the AP refused to heed the concerns that asset’s life was in danger and published anyway. We can pick these nits all we want, that still remains troubling.
Yeah, that is my take on it as well. There should be huge blow back in the media at AP for leaking the info on an asset and putting his/her life in jeopardy as well as American lives by compromising the mission.
Yeah there should be huge blowback at the media for endangering an asset just like there should have been huge blowback for not just releasing the name of Valerie Plame–but for every asset with whom she worked. They were exposed right along with her.
Except for the fact that it was likely Brennan’s statement that identified the asset.
It doesn’t look like the AP did that, though. They held off on the story at the request of the government.
This wasn’t an investigation of the AP; it was an investigation of who leaked to the AP. The AP sat on the information they received for a long time.
On a kind of peripheral note here, was Richard Clarke being at all irresponsible in his part of this? I can’t help being reminded of Robert Novak, but I have too much respect for Clarke to make the full connection there.
As you say, a timeline would be very helpful.
April 2012 – terror plot in Yemen foiled
April 26, 2012:
4/30 — 5/3 (estimated) AP informs administration of plan to run story.
5/8/2012 AP story appears and includes reports that AQ remains active in Yemen. That does not refute the carefully phrased statements by the administration that only concerned plots on the anniversary of OBL’s death.
If the CIA thought the AP report would compromise its operation in Yemen (even though the AP didn’t say there was an on-going in-country operation), they could have shut it down. This is unlike the situation with Plame who was outed without any notice to the agency.
That said, of far more concern to me is the Obama administration’s obsession with leaks and whistle-blowers. If there was one on the AP story, it enhanced the administration’s, or at least the CIA’s, anti-terror creds. Makes sense that Brennan would be queried. But let’s also recall that Petraeus was head of the CIA last year.
Of course, we don’t get straight answers about such things, but one thing I am wondering about is the usefulness of this agent by the time the thing started to leak out.
From reports I’ve read, this agent volunteered to wear the explosive undies but then turned them over to the CIA instead, which was the plan all along. But I think that would’ve ended his usefulness, right? You can’t take the undies and then lose them and go back to being undercover.
So, some of this doesn’t add up.
And it also coincides with Brennan doing two things. First, he finally relented and with Obama agreed to do signature strikes at forces who were fighting the Yemeni army. Second, he took over control of the drone strike decision-making process from JSOC.
This all was conflated during the reporting and made to seem like the drone program was being brought under better control rather than expanded in a dramatic way.
It seems like Brennan might have wanted the undie-bomber story out there to do a few things all at once. It would remind people that there is still a danger in Yemen. It would help justify a bigger drone program there. It would make Obama look tough because we infiltrated the plot and stopped it. It would undercut the critics.
But it also contradicted the reassurances the government had made, so he had to try to manage that end of it, and that was what the call with Clarke and Townsend and the others was all about.
In any case, that’s why suspicion has surrounded Brennan. And then if the FBI is suddenly trying to nail the National Security Advisor, that’s pretty remarkable in itself.
On the other hand, there the Petraeus end of it, and possibly some pissed-off people at the JSOC who didn’t like getting cut out of the drone thing. So, Brennan could have been the victim of some pushback.
Remember that Petraeus was outed on election day, once the exit polls came back looking solid. I mean, he was fired at the earliest possible moment. So, I’ve always suspected that there was some back story to that.
Too many conflicting agendas and too little information to bother with much speculation.
Following Chomsky’s lead, better to just take note of things as the appear in the media and connect “dots” when appropriate. The bungling does seem to be a bit more on display these days.
Off the top of my head (and my head for this sort of thing isn’t all that good).
January 2011 – Raymond Allen Davis incident in Lahore that we never gotten any answers to.
Summer 2011 – notice on Tamerlan Tsarnaev from FSB.
September 2012 Benghazi — CIA screwed up something there.
Today – CIA spy nabbed in Russia.
Thanks for putting up a timeline.
Holder’s press briefing a bit ago and he categorized this particular leak as being in the top 3 he’s been aware of.
With Holder recusing himself from the investigation it puts more pressure on John Brennan’s circle. It’s not going to be surprising if the investigation on this one turns up some nasty connections.
The DOJ responds to the AP’s complaints.
Ya know, I’m beginning to wonder if Petraeus fits into this somehow. I found it unusual the way that Holder pointed to this being in the top 3 if not the worst of leaks. “Top” made me think of Petraeus, not just Brennan.
If’n you want to start wild speculating, don’t limit it to the US folks who were read in. It could be Saudi or Yemeni folks as well. One who quickly comes to mind is the current Director of Saudi Intelligence– a guy nicknamed “Bandar Bush”.
Now now, Bandar is just plain suspicious but he doesn’t fit the description Holder set up. Petraeus is still under FBI investigation (as of this April) and that case is taking a very long time to tie up.
I don’t see why you come to the conclusion that the operation and an asset were blown. The AP article itself says:
Once the plot was thwarted, the operation was over. According to the AP, the administration was going to make an announcement about the plot anyway, so the AP just ran a story about it a day before the White House was going to make the announcement. Once the story was out, the White House tried to blame the leak entirely on the AP, as emptywheel points out, despite the fact that “the original AP story… made no mention of an undercover informant or allied ‘control’ over the operation, indicating only that the fate of the would-be suicide bomber was unknown.”
In short, the White House was going to go public with this story anyway, and that the AP caused any damage at all by running the story is merely White House spin, and John Brennan’s pique at the AP in particular. As for an asset’s cover being blown, you’re the only one making that inference, as far as I know. I have not heard anyone else say that an American “agent’s life was in danger” because of the leak. As the LA Times reported on the day after the AP story ran, the operation was actually a Saudi sting:
You have criticized me for lacking “imagination”. You, in contrast, appear to have an over-active imagination.
One key element here is the relationship between the announcement and the AP article.
Here’s what I mean. Yes, it’s true that the administration was going to make an announcement and asked the AP to hold off until they could. But the mere existence of the then unpublished article may have forced them to make an announcement they preferred not to make.
That’s really the key here.
The administration didn’t want it known that they had infiltrated this group. At least, that’s their story. There is, as I have pointed out in the comments here, some reason to doubt their story.
In my haste to have some response to this scandal, I did injury to the timeline. By the time the AP actually published, the asset was safe. However, that may not have been true when the AP first approached the White House and was told that the operation was ongoing. And that raises a second probability, which is that it wasn’t just the asset they were worried about, but their ability to roll up the cell without them being alerted to the danger.
So, it’s these equities that the were threatened by the leak, and that’s why the White House was angry.
Add to it that they were being blamed for leaking classified information for political purposes and, if that wasn’t true, they would have been especially eager to prove it.
emptywheel notes that Kimberly Dozier’s phone calls were also targeted. Dozier wrote this story published May 21, which is about how Brennan had taken over drone targeting from JSOC about a month earlier.
So the Justice Department may be as concerned about the leaks for Dozier’s story as they are about the leaks relating to the undie bomber story.
that’s rampant speculation.
She isn’t even saying that she was targeted. She’s noting that Dozier published an article that may have been in the window (which was shorter than two months, but took place in April and May). And, since her reporting took place (possibly) in the window, it’s conceivable that her sources could be discerned.
It’s pure conspiracy theory that depends on Brennan being behind the investigation, where he was clearly a target of the investigation.
Why do you say emptywheel “isn’t even saying that [Dozier] was targeted”? She lists the five people who were targeted, and Dozier was one of them; that list comes from the AP.
Brennan seems pretty close to the president. I seriously doubt that he would be suspected of making unauthorized leaks. In fact, I think he’s sufficiently high up the food chain that, if he makes a leak, it’s ipso facto authorized.
From the story that emptywheel got that list from:
The records for phone numbers of all six were obtained by the DOJ; that’s why the AP concluded that this is the story that the DOJ was interested in. But that’s just a guess on the AP’s part.
The DOJ hasn’t explained why it made such a broad sweep. Thinking that they are only interested in the undie bomber leaks is itself speculation.
Okay, but in that case, she was one of the writers of the article in question.
Once the plot was thwarted, the operation was over.
Perhaps, one the plot was thwarted, that particular operation was over. That doesn’t mean the well-placed asset became useless, and letting al Qaeda know someone was inside could be done without a cost.
You’re missing the First Amendment angle.
By issuing such a broad request, the DoJ found collected information that could be used to identify all of the sources for all of the stories that the AP had worked on for two months, who had talked on 20 telephone lines at the AP over a two month period.
The vast majority of those people were not divulging classified information, any many of them probably had legitimate reasons for not wanting to be outed. This is going to create a chilling effect, not only on assholes who leak important national security information for no good reason, but for anyone who might want to talk to the press in a confidential manner, and that’s going to reduce the press’s ability to do its job.
The Justice Department’s Seizing of AP Phone Records: A Continuation of Attacks on Freedom of the Press
That’s the narrative some people are pushing. The facts of this case don’t seem to fit it, but it sure is a beloved narrative.
The ‘information people ought to know’ is this case is that the CIA (or somebody) has someone inside an al Qaeda cell. Pray tell, why, exactly, is the public (and, therefore, al Qaeda) ‘supposed to know’ that?
This whole shibboleth about a “war on whistleblowers” would be a lot easier to accept if the people pushing it weren’t using Karl Rove’s Plame-era definition of “whistleblower.”
Agreed.
However, let’s look at this way.
Some of these assumption may be wrong, but let’s proceed as if they are correct.
Given those four things, the request for more than a month full of phone logs on twenty different lines makes sense. And the purpose isn’t to identify the source for a bunch of different articles on different subjects. Ideally, you’re looking to see if any of the numbers you’ve already identified (for people read into the program) show up at any point on those logs.
If you get a hit, you’ve got a solid lead. You can go to the official involved and say, “Hey, why did you call this number on this day at this time, who did you talk to?”
Now, assuming that you want to identify who it is in your national security team who has loose lips so that it doesn’t happen again, how else are you going to go about it? I mean, the regulations say that you have to exhaust other avenues, and I assume they did that.
If you turn it around and say that they had no idea who might have leaked, it’s just a dragnet fishing operation. But the truth is that they can probably limit the suspects down to a few dozen people.
A lot of people are complaining that they go after leakers at all. It’s kind of the Bradley Manning thing, where (setting aside his treatment in prison) some people act like it’s reasonable for the government to just shrug its shoulders when some low-level army kid decides to leak a Niagara Falls of classified cables to the whole world. No government can allow that.
I mean, it’s one thing to blow the whistle on some discreet act of wrongdoing. We need whistleblower protections for that. But what’s the point in detailing a disrupted terrorist plot that the government says it doesn’t want disclosed? Did the government do something wrong that they’re trying to cover up? Or did they do something right that they’d ordinarily want to take credit for?
So, yeah, it’s a problem that the government can poke it’s nose into phone logs without the reporter’s knowledge, and it does reduce people’s willingness to leak. But no government can let people leak sensitive operational intelligence and not try to put a stop to it.
The AP didn’t know operational details. The AP didn’t know the operation was a Saudi sting until Brennan revealed that fact.
How can you go on believing Holder, who is worse than Ashcroft? Also, what Holder actually said was that the leak “put the American people at risk”, a very vague assertion. He didn’t say that “there is a leak of classified information which threatens to screw up an ongoing operation”. That is an embellishment that your imagination keeps on adding.
This is just ad hominem wishful thinking.
Any information you don’t like, you’ve come up with an excuse to dismiss. It must be false, because Eric Holder is Satan.
If you read this Reuters story, you’ll find that the White House was not opposed to the AP publishing its story about a foiled bombing attempt. That means that the White House could not have considered the story to represent a serious leak.
The White House was so obsessed with spinning the story that it could not tolerate being quite about it for just one hour!
The serious leak came when Brenner let slip that the terrorist cell had been penetrated (or implied it; Richard Clarke made the necessary logical “leap”). Thus the damage was done by Brennan, not the AP. Going after the AP is just the White House’s way of shifting blame from Brennan to the AP, something that Reuters story from a year ago already says the White House was trying to do.
They story that they foiled a plot isn’t the problem.
The leaking of the bit about there being someone on the inside is the problem.
And why would the White House be worried about “spinning” a story on the subject of how awesomely they foiled a terrorist plot by al Qaeda? Your theory doesn’t even make any sense.
Making the “logical leap” of adding in a piece of information that Brennan did not say – that is, the difference between saying something and not saying it – isn’t some trivial difference. It’s the difference between leaking classified information and not leaking classified information.
you make a good point about the actual release of the article, but you’re still making the same error that I addressed before.
It’s the wrong way of thinking about this issue to focus on the actual release of the article. Once the press had the information, the government went into response mode on all levels. In Saudi Arabia or Yemen, they had to do certain things before the information went public, including safeguarding their asset and eliminating the cell. At that time, the AP agreed to put off publication.
That’s the point in time you need to be focused on because that was the point in time when the leak was causing damage.
Later on, when the administration had things cleaned up, they tried to negotiate over the release of the article. And they still didn’t clear it to go. The AP published it over their objections, whatever the reason for that might have been. I don’t blame them for not wanting to set a precedent that they don’t get to respond to articles the moment they appear in print, but that’s irrelevant to the issue at hand.
To quote Marie from the top of this thread: “If the CIA thought the AP report would compromise its operation in Yemen (even though the AP didn’t say there was an on-going in-country operation), they could have shut it down.” If the operation was still ongoing after the CIA or whoever got the underwear bomb, I don’t see why the CIA couldn’t tell the AP to sit on the story indefinitely. I think the “professional” press in all countries won’t publish a story if they are given a credible reason by the government for why publishing it would damage national security.
The White House’s/Holder’s account simply doesn’t make any sense, since if the leak to the AP was so damaging, the government could have kept the AP from publishing the story. Therefore, the reason why the government is going after the AP is (1) Obama’s general obsession with secrecy; (2) anger that the leak to the AP caused Brennan to let slip damaging information.
Remember, the double agent was a Saudi, so by trusting the AP and its reporters not to reveal the existence of a foiled bombing plot, the government would not be risking the life of an American citizen. (The CIA sacrifices non-US nationals who help it all the time, like that Pakistani doctor who gave Polio vaccinations to get DNA samples as part of the hunt for bin Laden.)
Your account requires one to assume that with the docile press we have today, the AP was unwilling to cooperate with the USG on a matter of national security, and I just find that very hard to believe.
Another angle is that the double agent presumably ended contact with the cell once he ran off with the bomb. If he went back to the cell, he’d have to explain what he did with the bomb. So it’s not clear to me how the operation could have continued, after the CIA got the bomb. So the government’s story doesn’t make sense in more than one way. What seems to be operative here is a paranoid (dare one say Nixonian?) obsession with the prevention of any kind of transparency and a stubborn refusal to admit that mistakes are ever made (that’s part of what’s behind the Plan-B appeal, too), something that used to be associated with the USSR during its period of stagnation, not with the US.
You are being very selective in which facts you will accept. From the article that you linked to to “prove” that the government was signing off on the publication, we also get this:
You can choose to believe all or part of that, but it seems unfounded to believe none of it.
I was the one who originally raised the question about the undie-bomber and losing the undies. I raised that question in this thread. But I don’t know what the hell the operation consisted of. Maybe he let the CIA look at the bomb and then took it back. It’s not like they’ve told us the whole story.
I also like the way you blithely consign an asset to death because we do that “all the time.” If we did that very often, no one would ever cooperate with us.
Finally, Eric Holder said compromising the operation was one of the most serious leaks he’s ever seen and that it could have cost American lives. You can disbelieve him if you want, but I wasn’t talking about the contract agent life when I talked about American lives.
I didn’t ignore any of that. I just took “news leaks” to include Brennan blabbing to Richard Clarke and those other people that appear on news shows in that conference call.
Yes, I noticed that you raised the question of how the double agent could keep his cover once he’d run off with the bomb. Sorry I didn’t mention that.
We have been given absolutely no grounds for believing that the leak to the AP (I don’t see why we need to use the plural when we’re talking just about the AP story) could have endangered American lives in any way. Holder says that due process has nothing to do with the judicial branch. He is a compulsive liar.
Did it ever occur to you that it is not just about endangering American lives? Our asset had help and it is important to protect those people. Once an asset is outed, every single person they ever came in contact with is at risk.
You’re acting as though the leak being investigated was the release of information by the AP when it published the story, but that’s not what is being investigated.
The leak in question is the release of the information to the AP much earlier than that. The AP sat on the information for quite some time before running the story.
I agree, it’s absolutely appropriate for the government to try to keep classified information about ongoing covert activities secret. It’s funny how the oh-so-principled critics knew this during the Valerie Plame investigation but managed to forget it immediately thereafter.
I don’t have any problem with there being an investigation of this leak, but the government really should tread carefully around the press. There is a compelling public interest on the other side, too – not related to protecting the identity of this leaker, but the breadth of the request gets so many other stories, reporters, and sources involved.
There are two troubling things about this.
1. The First Amendment says:
The AP is the press. You can’t get any more established press than the AP. It’s does not have the ambiguity legally of a blog–is it press or is it not?
What law did Congress make that allowed this seizure?
2. The Fourth Amendment says:
There was no warrant before seizure. By what reasonable standard was this a Constitutional search and seizure?
There are times that I wished that this restraint did not exist and the DOJ could come down on Fox News. But it is much better to have restraint against using this power vindictively.
My reading is that the Obama administration could not put Bradley Manning away in his kangaroo court trial without showing equal harshness to the established media.
The overreach in the state secrets doctrine and the invasion of privacy after 9/11 has reached new extremes.
AP deserves a warrant because they deserve to know how to avoid such seizures in the future and a warrant would have to be explicit about what information the DOJ was looking for.
This is not a minor breach. But it is of such a nature that I doubt that the GOP is will go out on a limb to make political hay out of it. They would look at it as precedent.
What law did Congress make that allowed this seizure?
The Electronic Communications Privacy Act. http://en.wikipedia.org/wiki/Electronic_Communications_Privacy_Act
“Data can be obtained on traffic and calling patterns of an individual or group without a warrant, allowing an agency to gain valuable intelligence and possibly invade privacy without any scrutiny, because the actual content of the communication is left untouched.”
By what reasonable standard was this a Constitutional search and seizure?
Because the information they gather was “outside of the envelope” information, not “contents of the envelope” information. They looked at the addresses and stamp on the letter, but didn’t open it to read what it said. That’s always been allowed.
I don’t get where this is “coming down on” the AP. The AP isn’t going to suffer an legal repercussions; they aren’t even accused of anything.
A warrant would have explicitly stated that the AP wasn’t accused of anything. The folks who wrote those two amendments had had personal experience of governments in which they did not exist. A warrant is there as a check and a matter of transparency to the public.
They looked at corresponding phone numbers and packet information, metaphorically on the outside of the envelope. Which raises this question. What authorization does law enforcement have to get to review particular people’s mail while it is in the USPS? Have you ever heard of this happening? Do they not have to get a warrant even to examine outside of the envelope information? I don’t know the answer to this one, but it seems that the outside-of-the-envelope-information argument is a bit dodgy.
A warrant is the solution to the issues raised here, but Justice’s decision not to seek a warrant it doesn’t need doesn’t implicated Justice in any wrongdoing. BTW, the Democrats supported an amendment to require a warrant for these cases, but the Republicans voted it down.
Also, they did not look at packet information. They didn’t get the electronic packets. They got records about the data, not the data.
They do not have to get a warrant to look at envelopes in the post office. They can walk in any time and start reading envelopes, and that has always been the case. There is no expectation of privacy over what you write on an envelope that you then hand over to the government.
Just because the Republican voted down a requirement for a warrant doesn’t mean that the DOJ automatically has to not issue warrants in every sitution–because the Constitution requires a warrant–pretty explicitly.
They got the metadata that showed date, time, to phone number, from phone number and customer info showing who those phone numbers belonged to if available.
So without a warrant, law enforcement can profile the appearance of the outside of an envelope, and pull those meeting the profile and copy or otherwise document the information about the envelope that met the profile. I would guess that most Americans are not aware of this. It is not an expectation of privacy but an expectation that the most the government would do would use that information to get the envelope to its destination efficiently.
Just because the Republican voted down a requirement for a warrant doesn’t mean that the DOJ automatically has to not issue warrants in every sitution–because the Constitution requires a warrant–pretty explicitly.
No, it doesn’t. The Constitution doesn’t require a warrant to collect any and all information. It requires a warrant to collect information over which someone has a reasonable expectation of privacy.
Outside-of-the-envelope information like this has never had that expectation.
You’re using the hot-button term “profile” for no good reason here. There is not profiling involved – I don’t even know how you’re making that connection.
They knew the leak went through a certain pipe at a certain time, so they collected information they are allowed to collect about all the messages that went through that pipe at that time. That’s not profiling, which is based on characteristics.
I can’t speak to what most Americans know. Those Americans who don’t know that the police can look at the outside of an envelope are dumb.
I’m using profile in the sense of probable cause. So how is the USPS to know that the law enforcement officer is not just snooping on who his ex-girlfriend is writing to? Under what authority is the law enforcement officer acting and what specifically is he looking for. That’s the nature of the information generally on a warrant. And that’s the checks and balances that need to be required.
But though it isn’t required by the Constitution, it would be better if there was a warrant in cases like this. Instead of the press and Republicans doing guesswork to provide oversight and make sure the request isn’t too broad or the information collected isn’t misused, a judge could do that using the actual facts.
Bingo! Ya finally got it.
You mean I “finally got” a point that was what I wrote in my very first comment on this thread six hours ago?
http://www.boomantribune.com/story/2013/5/14/102151/828#18
Uh…yeah, Tarheel, thanks a lot for explaining this point to little ol’ me. You sure did school me good.
And all of the necessary transparency would also be vetted by the judge.
Can someone please explain to me what it is that AG Holder has done even before this AP stuff that has had member of the right and the pseudo-extreme left in agreement that he is one of the worst AG ever.
Even before this AP story, it seems to me, and I admit to being new to following politics, that almost since his confirmation, the groups I mentioned have been unhappy with Holder.
I ask because even before all was alleged and known about the AP story (i.e. just the AP’s broadside against DOJ nothing else) there has been a seeming additional drumbeat from the left calling on Holder to either resign or for Obama to fire Holder (I say additional, because the GOP has never liked Holder and have wanted him out since the 1st term).
I know I’ll just be branded an Obot, but whatever, I genuinely like to know where this has come from. If the left doesn’t like Holder and the right doesn’t like Holder, then ????
My sense of the left’s frustration with Holder began when he refused to investigate the crimes of Bush and Cheney and the major banks and let statute of limitation after statute of limitation expire, essentially letting a bunch of people off the hook.
Then, he went punitively after whistleblowers like John Kiriakou and Thomas Drake. And used state secrets as a trump card with judges to ensure that no Guantanamo prisoners were brought to trial and the the military commissions were preserved from Constitutional challenge.
Finally, he worked to derail Schneiderman’s investigation of mortgage fraud.
He supposedly acts independently of the President. So those are on his watch.
He has attacked civil liberties and wimped out on significant civil rights enforcement, and let corporate criminals off the hook. Or has allowed his department to do all those things without opposition.
The Right: Attorney Generaling while black. And Democratic.
Pseudo-left: property still isn’t theft, while emulating Philip Agree is treated like some kind of crime.
Will Attorney General Eric Holder last the summer?
I would be dismayed, but I would also be surprised. Obama is constitutionally unable to admit that he has made a mistake. Also, admitting that he did would make more people see that the emperor has no clothes.
Haha, don’t know what happened there. I meant that I wouldn’t be surprised, either.
Obama may feel he’s better off with a flawed and wounded AG than the AG the Senate would approve which would be nobody.
Are you suggesting that the US AG serves a useful purpose at this point? Not a single bankster or Bush war criminal has even been indited.
The US would be better off with no AG at this point: all Holder does is go after whistle blowers, the press, and file sharers, while justifying the POTUS killing American citizens without any kind of judicial process.
I am beyond making any kind of charitable interpretation of what Obama “may feel” at this point. As far as I can tell, both Obama and Holder are operating completely outside of the worldview and norms of what used to be called western civilization. They are just continuing the age of barbarism that Bush/Cheney initiated with the theft of the 2000 election.
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No — was trying to be cut and obviously failed.
OTOH, the department would continuing operating as it has for at least the past two administrations regardless if Holder stays or goes and isn’t replaced. Not that a confirmable replacement is likely to improve the operation.