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.