The Secret Seizure and “Progressive” Democrats’ Failure of Heart

Attorney General Eric Holder with Deputy AG James Cole, who made the call to seize two months of phone records of 20 AP reporters.

AG Eric Holder with Deputy AG James Cole, who made the call to secretly seize two months of records of 20 phone lines of AP reporters in search of a  leaker in the Obama administration.

My first instinct when I heard Monday’s revelation of the DOJ’s secret seizure of certain AP reporters’ work and home phone records was to say to myself, I’m glad I voted for Jill Stein.

My second was to fume over how infuriating this story is, what ham-handed ineptitude it displays. If there’s only one area of Obama’s administration that progressive Democrats who voted for him twice should agree with me about it’s this nauseatingly phony tougher-than-Bush approach to questions of national security. I mean, if I were the same person I was in, say, 2004 and had voted for Obama’s second term, I would be having some serious cognitive dissonance issues to deal with today. On the other hand, these are the same people who boasted loudly for half the campaign season about Osama bin Laden’s death (rather than his capture, which would really have been something to boast about), so chances are they won’t be too upset over anything Obama does in the name of national security.

And that brings us back to the administration’s ridiculous anti-leak campaign, which, if you follow the newspaper trail, leads back to about a year ago, when Republicans in Congress and the media (in particular) began to bellyache about the number of leaks on national security issues that were suddenly appearing in the national press. Republicans were especially irked  (so they said) over the details of the bin Laden mission that they claim the president himself was leaking to make himself look airtight on counterterrorism for the upcoming election. They (and some Democrats) also complained about the appearance of news items and a book by NY Times reporter David Sanger on the Stuxnet computer virus that the US and Israel allegedly launched against Iran’s nuclear software and about a Yemen-based al Qaeda group’s plot, as reported in May 2012 by the AP, against a passenger airliner timed to coincide with the anniversary of bin Laden’s death. It’s the latter story that’s at the center of this seizure.

According to Marcy Wheeler at Salon,  in an apparent case of the left hand not knowing what the right was doing, the White House was unwittingly pushing two stories that, coincidentally, served Obama’s chances for reelection, but that contradicted each other–one, that the Qaeda threat was thwarted and, two, that there was no real threat because the CIA had an operative inside al Qaeda creating a phony threat to be thwarted. According to Wheeler:

[B]ecause the AP noted that the thwarted plot seemingly contradicted earlier White House assurances there had been no terrorist threats coinciding with the anniversary of bin Laden’s death, then-White House counterterrorism czar John Brennan appears to have panicked. In a conference call with his predecessors before they were to go on TV to talk about the foiled plot, he explained why the White House had said there was no threat on the anniversary even while knowing of the underwear bomb plot: We had inside control of the plot. “[T]his was shortly after the anniversary of the bin Laden takedown,” Brennan explained at his confirmation hearing to become director of the CIA. “I said there was never a threat to the American public as we had said so publicly, because we had inside control of the plot and the device was never a threat to the American public.”

That tipped off at least one of the participants in that call, Richard Clarke, that the claimed “bomber” was actually an infiltrator. The next day, ABC, a network he consulted with, reported, “In a stunning intelligence coup, a dangerous al Qaeda bomb cell in Yemen was successfully infiltrated by an inside source who secretly worked for the CIA and several other intelligence agencies.”

This revelation — which appears to have been almost entirely a direct result of John Brennan’s attempt to preempt any questions about earlier administration assurances — exposed sensitive details of the plot, including which other countries had recruited this infiltrator.

So why isn’t Brennan the target of an investigation, since it was his information that actually endangered lives? Why was Brennan rewarded with promotion to head of the CIA? I wouldn’t count on getting answers to those questions any time soon. But at least this may explain why the DOJ focused like a laser beam on the source of the AP story: it was actually an embarrassment to the White House. Republicans (and some Democrats) were breathing down the administration’s neck to stop the leaks, and, conveniently, if they could find the source of the leak to AP, maybe they could satisfy a little of the anti-leakers’ blood lust while simultaneously nailing a talkative official who embarrassed them. Truth is, I don’t know why DOJ did what it did. Maybe they are soulless robots who just process random inputs according to precise standard operating procedures (which is highly unlikely, given that the Electronic Frontier Foundation has shown how DOJ “violated its own regulations for subpoenas to the news media”). My explanation is, at least, more plausible.

Maybe like me you’re wondering how the DOJ thought it was justified in effecting this clumsy, greedy grab for the private information of some 20 phone lines associated with AP journalists, many of whom were not even working on the Yemen story. It wasn’t to their Congressional antagonists’ high standards that the DOJ was looking.  In the wake of this mess last June, the Senate Intelligence Committee–as usual in our best of all governments, taking the most boneheaded, least democratic action available to it as a first resort–began work on draconian rules to deter and punish leakers in the intelligence community, including one outlawing off-the-record contacts between all but the most senior officials of intelligence agencies (except for the White House, ironically) and members of the press. The worst of these, fortunately, were thrown out in December after the SIC yielded to a maneuver by Democrat Ron Wyden of Oregon who had opposed them on grounds that the First Amendment probably protects even junior intelligence officials, too.

In a scathing column on Tuesday, Glenn Greenwald (who called the DOJ’s action “a massive, sweeping, boundless invasion”) speculated (vainly) on the basis for the seizure:

The legality of the DOJ’s actions is impossible to assess because it is not even known what legal authority it claims nor the legal process it invoked to obtain these records. Particularly in the post-9/11 era, the DOJ’s power to obtain phone records is, as I’ve detailed many times, dangerously broad. … There are numerous instruments that have been vested in the DOJ to obtain phone records, many of which do not require court approval, including administrative subpoenas and “national security letters” (issued without judicial review); indeed, the Obama DOJ has previously claimed it has the power to obtain journalists’ phone records without subpoenas using NSLs, and in its relentless pursuit to learn the identity of the source for one of New York Times’ James Risen’s stories, the Obama DOJ has actually claimed that journalists have no shield protections whatsoever in the national security context. It’s also quite possible that they obtained the records through a Grand Jury subpoena, as part of yet another criminal investigation to uncover and punish leakers.

None of those processes for obtaining these invasive records requires a demonstration of probable cause or anything close to it. Instead, the DOJ must simply assert that the records “relate to” a pending investigation: a standard so broad that virtually every DOJ desire will fulfill it. Even if a court were involved in the acquisition of these records – and that’s unlikely here – it typically does little more than act as rubber-stamping functionary, just as it does when secretly approving the DOJ’s requests for FISA warrants. This is what is reaped from continuously vesting the US government with greater and greater surveillance powers in the name of Terrorism and other fears.

As I read more about this case,  I just get more irritated and depressed. But Greenwald notes that there really are progressives out there who are searching frantically for the silver lining in this unfortunate cloud over the Great Hoper’s second term and ultimate legacy.

The all-too-familiar axis that has enabled massive civil liberties assaults by the Obama administration – blindly partisan progressive media outlets and particularly obsequious self-styled neutral journalists – instantly sprung into action here and wasted no time jumping to the defense of the US government. TPM’s Josh Marshall, while saying “there’s still a very live question of whether this was a prudent action on the part of the DOJ”, actually published an anonymous letter depicting the Obama DOJ as the victim here, saying AP “seeks to smear Justice” (in the annals of lowly journalistic behavior, printing anonymous emails defending the US government’s surveillance actions and attacking targeted journalists is way down in the sewer, but that’s the government-defendingJosh Marshall in the Age of Obama). Similarly: before most people had even learned of the story, Think Progress purported to explain “Why The Department Of Justice Is Going After The Associated Press’ Records” and, of course, offered the most benign and generous interpretation possible: they only did it to find out who is responsible for an “unauthorized and dangerous disclosure of classified information”, quoting CIA Director John Brennan (offering instant “explainers” for even the most dubious of Obama administration actions is its typical tactic).

Some progressives actually tried to blame Republicans for the Obama DOJ’s conduct because the GOP largely voted against the codification of some added protections for journalists from DOJ record-gathering in a proposed “shield law”. But Obama, who supported those protections when he was in the Senate, “reversed course” when he was president – that could easily be the motto of his presidency – and it was his opposition that helped kill that bill.

As I said, I’m so glad I voted for Jill Stein, if only because I’m free of the compulsion to excuse the inexcusable here.

One thought on “The Secret Seizure and “Progressive” Democrats’ Failure of Heart

  1. Pingback: Bomb plot briefing may undercut DOJ's case for AP records seizure - Syndicated News Services

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