Scrambling To Find AP Leaker, Obama’s Administration Vindicates Bush

To judge from this week’s developments, we’re still accelerating in the direction set by George W. Bush after 9/11 towards a retrenchment of White House power and secrecy, and new limits on the media.

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Chip Somodevilla / Getty Images

U.S. Attorney General Eric Holder at a news conference in Washington, D.C., on May 14, 2013.

After conducting 550 interviews and reviewing tens of thousands of documents, Justice Department investigators looking for the person who leaked details of a foiled al Qaeda bomb plot to the Associated Press in 2012 apparently still couldn’t make the case. So the feds faced a choice: subpoena the call records for 20 telephone lines used at work and home by AP reporters or risk failing to find the leaker. Choosing to use investigative tools Justice has resisted in the past, investigators not only went with the subpoena, they did it without notifying the AP.

That decision shows three things. First, DoJ’s case against the leaker may be in trouble. Second, prosecutors are increasingly willing to intrude on media freedom. Third, George W. Bush and Barack Obama‘s post-9/11 trend of limiting media oversight and expanding executive branch secrecy is continuing apace, whether Obama and Attorney General Eric Holder admit it or not.

The records seizure was authorized by Deputy Attorney General James Cole because Holder recused himself from the case after the FBI interviewed him about the leaks, Holder said Tuesday. In a letter responding to protests from the AP, Cole said Tuesday that the department had issued the subpoena for the phone records as a last resort. Investigators had taken “all reasonable alternative investigative steps before even considering the issuance of a subpoena” for phone records, Cole wrote, and that the subpoena for the records was “drawn as narrowly as possible.”

Taking Cole at his word, the breadth of the subpoena shows how far Justice still has to go. The subpoena covers call records, but not call contents, over the telephone lines of five reporters and one editor. That suggests investigators still don’t know who received the leak, let alone the identity of the leaker. If investigators decided not to subpoena the reporters notes before going for their phone records, it further suggests the feds don’t know where to start looking; if the feds already have subpoenaed notes, it means they haven’t found what they’re looking for.

In a larger sense, the DoJ decision is the latest roll-back of post-Nixon era restraint in investigating journalists. Justice has had the legal power under the U.S. criminal code to get a warrant to subpoena journalists’ notes and their phone records for over 40 years, but have rarely used it. Since U.S. Attorney Patrick Fitzgerald successfully forced reporters to provide evidence against their sources in the Valerie Plame/Scooter Libby case (TIME Magazine was involved in that case), prosecutors have increased their willingness to go after journalists. Except in cases of espionage and international terrorism, the law requires Justice to inform the targets of monitoring after a few weeks.

Holder said the extraordinary measures were taken because the leak had endangered American lives. The AP story revealed that the U.S. had intercepted a bomb made by a dangerous al Qaeda affiliate in Yemen that had barely failed on several occasions to blow up U.S. airliners. “I’ve been a prosecutor since 1976 and I have to say that this is among — if not the most serious, it is within the top two or three most serious leaks that I’ve ever seen,” Holder said Tuesday. “It put the American people at risk, and trying to determine who was responsible for that, I think, required very aggressive action.”

Thanks to the combination of perceived danger and lowered bar for investigating journalists, the roll back of media protections seems to be accelerating. The AP investigation came after Republicans, including Senator John McCain, accused the Obama administration of leaking details of national security successes for electoral gain. In response, Attorney General Eric Holder appointed two prosecutors, one to look into the leak of details to New York Times reporter David Sanger about a U.S.-Israeli cyberattack on Iran, the other to investigate the AP about the U.S. interdiction of a terrorist bomb plot against the U.S. McCain and Lindsey Graham would have given the investigators even more power. “The recent decision of the attorney general falls far short of what is needed and is not an adequate substitute for an outside special counsel,” the Senators wrote in a letter at the time.

Though White House spokesman Jay Carney said Tuesday that President Barack Obama didn’t know anything about the DoJ investigation of the AP and that Obama believes in “balance” between freedom of the press and national security, the president has done his part to accelerate the trend. Obama came into office offering Americans a deal on secrecy. On the one hand, he promised to shrink the number of secrets created by the government, ending the problem of “overclassification” which produces so many secrets that few are well protected. At the same time, he said he would aggressively defend the secrets the government did need to keep by going after leakers and making them pay.

Obama has delivered on the crackdown–he’s prosecuted twice as many leakers as all his predecessors combined–but he hasn’t delivered on the secrecy reduction. The Information Security Oversight Office at the National Archives reported to Congress last year that in 2011, newly created original classifications were essentially flat, dropping from 2,378 in 2010 to 2,362 in 2011. At the same time, there were 92,064,862 derivative classifications decisions stemming from those and other original secrets in 2011, a rise of 20% from 2010. The ISOO said that increase in derivative classification resulted largely from changed rules that covered electronic classification.

Limits on press freedom and expansion of executive branch power and secrecy come in cycles. To judge from this week’s developments, we’re still accelerating in the direction set by George W. Bush after 9/11 towards a retrenchment of White House power and secrecy, and new limits on the media. On Tuesday a broad coalition of media organizations, including Time Inc., protested the DoJ move.

MOREDOJ’s Dragnet on Leakers: The Apathy is Troubling, Especially Among Journalists

164 comments
XiraArien1
XiraArien1

You too hua?

So after first coming for Bradley Manning, Julian Assange, John Mitchell, Edwin Meese, and John Ashcroft and not saying much they now have the nerve to complain when it’s done to them? I have news for you, Associated Press babies, it’s too late.

If you ever want to be free you need to flee the country.

llltexas.com

HenryThoreau
HenryThoreau

Look at all the islamo-communist apologists and bigots.  I'm starting to wonder if you fkers are in the right Country.  Maybe North Korea or China is more your cup of tea... Oh I'm sorry, is Tea racist too?

So the jist of the article is that journalists had classified information, like the location and personnel that killed Bin Laden?  No?  That's right, movie producers and CNN had that and now half of them are dead.

But in this case it's different, because the guy that found the bomb is all over the news.  Wait.. he isn't?  What went wrong?  I guess Holder has to tap the phones of the House of Congress and the entire AP to find out.  Makes sense to Liberals- because crinimal insanity isn't just a state of mind.  It's a way of life.


dmb
dmb

"So the feds faced a choice: subpoena the call records for 20 telephone lines used at work and home by AP reporters or risk failing to find the leaker."

Seems like if you wanted to know who in the Administration was leaking to the AP, you would subpoena the phone records of the people in the administration who knew the info to see who was talking to AP.  This Investigation is assbackwards and suspicious.

fitty_three
fitty_three

22 - 8

I wonder if David Stern had a bad experience in Seattle when he was young.  Seems to me his efforts as commisioner of the NBA has largely been devoted to making sure that there's no basketball in Seattle.


fitty_three
fitty_three

Thanks for clarifying and exhibiting your bigotry, @paulejb  

It's very instructive.

RoccoJohnson
RoccoJohnson

"Obama came into office offering Americans a deal on secrecy. On the one hand, he promised to shrink the number of secrets created by the government, ending the problem of “overclassification” which produces so many secrets that few are well protected. At the same time, he said he would aggressively defend the secrets the government did need to keep by going after leakers and making them pay."

Every presidential candidate makes statements like this, maybe not the same details, but statements about what they are going to do once in office, but the reality seems to be that once elected, and they become privy to the breadth of why some things must remain classified they often seem unable to deliver on the promise. Obama is hardly unique in this. This is just my opinion, but I believe it's one of the reasons all presidents' hair turns white after a very short time in office.

paulejb
paulejb

"Bush AG Alberto Gonzales: I didn’t subpoena on leak"

"Former Attorney General Alberto Gonzales said Wednesday that the Bush administration once considered issuing the type of subpoena that the Justice Department issued against the Associated Press, but ultimately opted against it."

http://www.politico.com/story/2013/05/alberto-gonzales-subpoena-leak-91405.html?hp=r7

Bush needed no vindication. Barack Obama is twisting slowly in the wind on his own with this one.



denmarks47
denmarks47

Please file the Obama administration under "False Prophets."

denmarks47
denmarks47

Please insert claims instaed of clames. dah!

denmarks47
denmarks47

Anybody who thinks Obama is who he clames to be needs to see the Flim Flam Man with George C. Scott

PaulDirks
PaulDirks

@fitty_three @paulejb Now if they had holstered pistols it would be all copacetic because they're simply exercising their rights. Oh wait? 

Yup. Paulie can't hide his bigotry.


drudown
drudown

@RoccoJohnson 

Concur.

Stated differently, it is not only the Judicial branch that is bound by the timeworn mandate of precedent: the Executive branch- including Executive Privilege- exist to ensure the integrity of the Separation of Powers (see, e.g., via Article II, Section 2).

There is nothing more asinine than the notion a bunch of freeloading lobbyists moonlighting as "members of Congress" perpetually on the take from every angle- including Foreign Governments via Super PACs- have the audacity to question the objectivity of "activist judges" for overturning corrupt Legislation that is void on its face and/or (2) impugn or unduly hinder our Commander in Chief's ability to advance our collective, strategic interests without any evidence of malfeasance. 

"Hey Lindsay, since when are Presidents vicariously liable for 4 deaths in Libya but not 3,000 in New York?"

jason024
jason024

@paulejb Guess who gave DOJ this power...the GOP...


Guess who wanted Obama to investigate leaks....the GOP....So stop your self serving whining and own up to the fact that this is what the GOP wanted to happen.

mantisdragon91
mantisdragon91

@paulejb

When then-White House counsel Alberto Gonzales went to John Ashcroft's hospital room on the evening of March 10, 2004 to ask the ailing Attorney General to override Justice Department officials and reauthorize a secret domestic wiretapping program, he was acting inappropriately, Ashcroft's deputy at the time, James Comey, testified before Congress earlier this week. But the question some lawyers, national security experts and Congressional investigators are now asking is: Was Gonzales in fact acting illegally?

http://www.time.com/time/nation/article/0,8599,1622832,00.html

mantisdragon91
mantisdragon91

@paulejb

Gonzales Hospital Episode Detailed
Network News X Profile View More Activity TOOLBOX Resize Print E-mail Reprints By Dan Eggen and Paul Kane Washington Post Staff Writers
Wednesday, May 16, 2007

On the night of March 10, 2004, as Attorney General John D. Ashcroft lay ill in an intensive-care unit, his deputy, James B. Comey, received an urgent call.

White House Counsel Alberto R. Gonzales and President Bush's chief of staff, Andrew H. Card Jr., were on their way to the hospital to persuade Ashcroft to reauthorize Bush's domestic surveillance program, which the Justice Department had just determined was illegal.

In vivid testimony to the Senate Judiciary Committee yesterday, Comey said he alerted FBI Director Robert S. Mueller III and raced, sirens blaring, to join Ashcroft in his hospital room, arriving minutes before Gonzales and Card. Ashcroft, summoning the strength to lift his head and speak, refused to sign the papers they had brought. Gonzales and Card, who had never acknowledged Comey's presence in the room, turned and left.

The sickbed visit was the start of a dramatic showdown between the White House and the Justice Department in early 2004 that, according to Comey, was resolved only when Bush overruled Gonzales and Card. But that was not before Ashcroft, Comey, Mueller and their aides prepared a mass resignation, Comey said. The domestic spying by the National Security Agency continued for several weeks without Justice approval, he said.

"I was angry," Comey testified. "I thought I just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me."

The broad outlines of the hospital-room conflict have been reported previously, but without Comey's gripping detail of efforts by Card, who has left the White House, and Gonzales, now the attorney general. His account appears to present yet another challenge to the embattled Gonzales, who has strongly defended the surveillance program's legality and is embroiled in a battle with Congress over the dismissals of nine U.S. attorneys last year.

It also marks the first public acknowledgment that the Justice Department found the original surveillance program illegal, more than two years after it began.

Gonzales, who has rejected lawmakers' call for his resignation, continued yesterday to play down his own role in the dismissals. He identified his deputy, Paul J. McNulty, who announced his resignation Monday, as the aide most responsible for the firings.

"You have to remember, at the end of the day, the recommendations reflected the views of the deputy attorney general," Gonzales said at the National Press Club. "The deputy attorney general would know best about the qualifications and the experiences of the United States attorneys community, and he signed off on the names," he added.

Those comments appear to differ, at least in emphasis, from earlier remarks by Gonzales, who has previously laid much of the responsibility for the dismissals on his ex-chief of staff, D. Kyle Sampson. They stand in contrast to testimony and statements from McNulty, who has acknowledged signing off on the firings but has told Congress he was surprised when he heard about the effort.

The Justice Department and White House declined to comment in detail on Comey's testimony, citing internal discussions of classified activities.

The warrantless eavesdropping program was approved by Bush after the Sept. 11, 2001, attacks. It allowed the NSA to monitor e-mails and telephone calls between the United States and overseas if one party was believed linked to terrorist groups. The program was revealed in late 2005; Gonzales announced in January that it had been replaced with an effort that would be supervised by a secret intelligence court.

mantisdragon91
mantisdragon91

@paulejb Really did Holder turn a blind eye to what Monica Goodling did to the Justice Department? Or did he show up at John Ashcroft's sick bed to force a barely conscious man to sign off on Unconstitutional torture authorizations? Both things done by Alberto Gonzalez.

fitty_three
fitty_three

Yes, paulejb, there really is no limit on the bulls**t that you can swallow.

fitty_three
fitty_three

Why would you assume that they are his pals?

Is it because Holder is a black Americans?

Is that why, paulejb?

drudown
drudown

@jason024

Moreover, the GOP has bamboozled people into uncritically assuming that the IRS was not well within its legal authority to investigate "charities" being pronounced no better than a code for thieves. Once again, we keep hearing "naked allegations" but never any evidence. 

TyPollard
TyPollard

@paulejb @TyPollard @fitty_three 

I do not want to meet any stranger in a dark alley. 

I just don't. 

I find these citizens to be much less threatening than anyone with a gun and actually dig the berets. Very stylish.

fitty_three
fitty_three

Our Favorite Parasite is trying to play the not-so-subtle "Blacks Behaving Badly" race card.

drudown
drudown

@paulejb @mantisdragon91 

Last month, paulejb is crying over al-Awlaki's "being unduly deprived of his due process rights to a jury trial" and then Boston happens. Now Al-Qaeda are "scum". Who knows what partisan rattle he will be shaking tomorrow. 

mantisdragon91
mantisdragon91

@paulejb @mantisdragon91 They were wiretapping everyone including reporters. Why do you think a career GOP operative like John Ashcroft threatened to resign over it along with many other members of the Justice Department and FBI director Robert Mueller

fitty_three
fitty_three

@paulejb

I like your subtle racism, paulejb.

You wouldn't have mentioned the NBPP if Holder wasn't a black American.