The American Bear


Holder’s Off-the-Record Meetings with the Press: A Ploy Intended to Make a Public Relations Point | Kevin Gosztola

[…] During the meeting, participating media executives “reached an agreement with the Justice Department under which they could describe what occurred during the meeting in general terms.” That they would need permission from Holder to discuss the Obama administration’s attitudes around policies and procedures that have profound implications for freedom of the press is a sad statement on establishment media organizations.

James Warren, Daily News Bureau Chief, described how “press representatives” pushed Holder “to consider internal department changes that might prompt greater discretion and avoid what the media feels can be overly broad subpoenas.” There was a “forthright and civil back-and-forth” that “saw the two sides also discuss possible changes in laws relevant to seeking subpoenas of journalists’ phone records and emails.” Yet, they reiterated a favorite administration talking point, that “they seek a balance between protecting national security and honoring the role of a largely unfettered media in a democracy,” which media outlets are undoubtedly tired of hearing, especially since the administration’s record suggests that is not really true.

Politico offered a summary of the meeting, which included an anonymous quote from one of the five journalists at the meeting. It was further evidence of how some of the media organizations had decided to be fully compliant with the Obama administration in these meetings:

The guidelines require a balance between law enforcement and freedom of the press, and we all argued that the balance was out of kilter, with the national security and law enforcement interests basically overwhelming the public’s right to get information…The language concerning ‘aiding and abetting’ comes out of the Privacy [Protection] Act, and they discussed trying to revise that language so that reporters don’t need to be defined as co-conspirators in order to execute search warrants.

In other words, if the administration could do it all over again, they would not label Rosen a “co-conspirator” but they would still investigate him as if he were one. Anyone who finds this to be a reassuring “shift” is desperately searching for a silver lining.

[…] These meetings are not likely to lead to any meaningful change. The result of the review will, at best, advocate for cosmetic changes. The administration will still push a media shield law re-introduced in Congress that has a broad national security exception that would not have protected Rosen’s privacy. Actions will continue to favor national security agencies over journalists’ right to freedom of the press.

The Obama administration understands what is at stake here: the ability of government to control the flow of information and maintain the secrecy it wants to govern without being scrutinized. Whatever adjustments the Justice Department makes will be carefully calculated so the administration still has maximum authority to pursue leaks investigations as it puts in place guidelines to forestall any actions that could lead to outrage among the press. So, in that respect, media organizations, who wisely chose not to participate, are likely to be vindicated as it becomes more and more clear this was some public relations operation put on by the Obama administration.

Today Attorney General Eric Holder held a meeting — the second of three — with journalists from high-profile organizations including the ABC, The Wall Street Journal, and POLITICO, in order to discuss how to placate them during any potential, future Department of Justice wiretapping. Or something. It’s hard to know exactly what was discussed, since the meeting was off the record. This fact raised the hackles of several outlets including the AP (well, yeah, guys), The New York Times, CNN, and the Huffington Post, all of whom decided to officially skip the whole thing if they weren’t free to report on what was said.

CNN and Huffpo said they would certainly go if the meeting were on the record. And NY Times executive editor Jill Abramson said, “It isn’t appropriate for us to attend an off-the-record meeting with the attorney general.” Huffington Post Washington bureau chief, Ryan Grim added, “A conversation specifically about the freedom of the press should be an open one. We have a responsibility not to betray that.” Grim must not be a fan of the Obama administration’s long series of ironic moves designed to make their puffery about “openness” more and more hilarious. (One of the best was Obama accepting an award for transparency in a private meeting….)


Also, much of the media is disinterested in protecting “unofficial” journalists, but the rules have changed in this here internet age — it’s not just the AP who deserves to have their phone records untapped. Arguably it’s worse with them, because of the chilling effect on investigative reporting. But what about the chilling effect on political dissent that might come from the allegation that every phone call in the US is being recorded? And much has been said about the Obama administration’s alarming war on whistleblowers, which is more or less another arm of its war on the press (only the press is a lot less interested in the former) but again — if the AP wiretapping is the Rubicon on acceptability, that’s great the press has finally had enough. But that line was there and ignored since, oh, let’s say the moment Candidate Obama voted for telecom immunity for companies that helped the Bush administration in their wiretapping. In short, we’ll see how long the press outrage lasts.

(via prosveshcheniye)

(Source: jayaprada)

Multiple media outlets just say no to Eric Holder meeting

Several news organizations invited to meet this week with Attorney General Eric Holder to discuss the Justice Department’s guidelines governing security leak investigations that involve reporters are refusing the invitation citing the meetings’ off-the-record status.

A Justice Department official said on Wednesday that meetings with select bureau chiefs will be off the record to “best facilitate the candid, free-flowing discussions we hope to have in order to bring about meaningful engagement.” [OK.]

Holder called the meetings this week as part of a department review directed by President Barack Obama after controversy over the secret seizure of Associated Press reporters’ and editors’ phone records and secret monitoring of Fox News reporter James Rosen.

But by Thursday afternoon, Reuters, Fox News, CNN, McClatchy and Huffington Post had joined the Associated Press and The New York Times in deciding to boycott the meetings due to their off-the-record status.

"I told folks that I’d be happy to participate if the meeting were on the record. And I offered to bring our first amendment lawyer with me," McClatchy’s Washington Bureau Chief James Asher wrote in an email to Yahoo News. "So far, no response."

As a result of [the nearly universal uproar over attacks on press freedoms], the administration has offered characteristically symbolic gestures to placate the growing media anger, but those gestures actually solve nothing. Obama announced he was once again supporting a shield law that provides some protections to journalists, but media outlets quickly pointed out that, by design, it would have done little if not nothing to prevent any of these abuses, and could arguably empower the DOJ even more to invade journalists’ communications*. Then the Obama White House proudly announced that there would be an ‘investigation’ into the DOJ’s treatment of whistlelbowers and journalists, an investigation that would be led by … Eric Holder himself; that’s DC oversight: we’re going to conduct a robust investigation of ourselves.

Glenn Greenwald

* Some thoughts I put together last week on the proposed shield law and how it would likely make things worse.

Holder’s refusal to accept responsibility for the AP investigation was something of a change for the political insider. His value to President Obama has been his absolute loyalty. Holder is what we call a ‘sin eater’ inside the Beltway — high-ranking associates who shield presidents from responsibility for their actions. Richard Nixon had H.R. Haldeman and John Ehrlichman. Ronald Reagan had Oliver North and Robert ‘Bud’ McFarlane. George W. Bush had the ultimate sin eater: Dick Cheney, who seemed to have an insatiable appetite for sins to eat. … For Obama, there has been no better sin eater than Holder. When the president promised CIA employees early in his first term that they would not be investigated for torture, it was the attorney general who shielded officials from prosecution. When the Obama administration decided it would expand secret and warrantless surveillance, it was Holder who justified it. When the president wanted the authority to kill any American he deemed a threat without charge or trial, it was Holder who went public to announce the ‘kill list’ policy.

Fire Eric Holder

In explaining the reasons why Holder should go, Turley lays out the reasons why Holder won’t go … he’s far too useful.

Report: Holder Personally Approved Search Warrant On Fox Reporter | Jonathan Turley

Attorney General Eric Holder recently appeared before the House Judiciary Committee and denied any involvement in the abuse searches targeting the Associated Press by the Obama Administration. Holder seemed to morph with his predecessor Alberto Gonzales with a mantra of “I have no knowledge” and “I had no involvement” in the scandal. It was a disturbing defense in one of the greatest attacks on the free press in modern times. Now, however, Holder’s fingerprints have been found on an equally disturbing targeting of a Fox reporter, James Rosen. As with the Associated Press, Rosen was targeted for simply speaking with a source in a story involving classified information. Even his parents telephone information was seized in the abusive operation where Rosen was declared a “possible co-conspirator” in violations of the Espionage Act.

Holder’s order led to Justice Department investigators secretly seizing his private emails because he was found to have “asked, solicited and encouraged … (a source) to disclose sensitive United States internal documents and intelligence information.” That is called being a reporter.

It is astonishing to see apologists continuing their effort to excuse the record of the Obama Administration in attacking reporters and whistleblowers. While various public interest and media groups have denounced these acts, many still cannot get themselves to criticize President Obama for this disgraceful legacy. Obama has been aware of the criticism for targeting reporters and whistleblowers for years and has done nothing — just as he is aware of the complaints of civil libertarians over kill lists, torture, and other abusive policies. He has not simply destroyed the civil liberties movement in the United States, as previously discussed, but the very soul of the Democratic Party which once [briefly] stood for principles of privacy and the free press.

These issues were placed squarely before Holder in the Rosen search and he did what he has done in so many other constitutional conflict: he kicked principle into the gutter. He has shown again that his view of constitutional protections borders on open contempt. He is the very image of what Louis Brandeis once described in his dissenting opinion in Olmstead v. United States, 277 U.S. 438 (1928):

Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

Source: Politico

600 Days after Assassinating Anwar al-Awlaki, Administration Admits Doing So | emptywheel

In this letter boasting of “unprecedented transparency,” Eric Holder officially tells Congress that since 2009 the government has killed 4 Americans: Anwar al-Awlaki was specifically targeted and killed, and Samir Khan, Abdulrahman al-Awlaki, and Jude Mohammed were “not specifically targeted.”

One paragraph of the letter details how Umar Farouk Abdulmutallab told US officials of Awlaki’s involvement in the UndieBomb plot.

Too bad that in two of three confessions, Abdulmutallab said someone besides Awlaki did the things Holder lists here. Too bad that Abdulmutallab’s lawyer now says the solitary confinement associated with the interrogations in which he did implicate Awlaki made him incompetent.

The Law Behind the Associated Press Phone-Record Scandal | The New Yorker

From New Yorker General Counsel Lynn Oberlander:

The cowardly move by the Justice Department to subpoena two months of the A.P.’s phone records, both of its office lines and of the home phones of individual reporters, is potentially a breach of the Justice Department’s own guidelines. Even more important, it prevented the A.P. from seeking a judicial review of the action. Some months ago, apparently, the government sent a subpoena (or subpoenas) for the records to the phone companies that serve those offices and individuals, and the companies provided the records without any notice to the A.P. If subpoenas had been served directly on the A.P. or its individual reporters, they would have had an opportunity to go to court to file a motion to quash the subpoenas. What would have happened in court is anybody’s guess—there is no federal shield law that would protect reporters from having to testify before a criminal grand jury—but the Justice Department avoided the issue altogether by not notifying the A.P. that it even wanted this information. Even beyond the outrageous and overreaching action against the journalists, this is a blatant attempt to avoid the oversight function of the courts.

It is not, again, as if the government didn’t have options. The D.C. Circuit (in a 2005 opinion upholding a finding of contempt against the Timess Judith Miller and Times Matt Cooper for refusing to testify about who had disclosed Valerie Plame’s identity as a C.I.A. operative) has held that there isn’t a First Amendment privilege for journalists to refuse to testify before a criminal grand jury, as has the Second Circuit (in a 2006 case in which the government was trying to find out who told the Times about a planned raid on two foundations suspected of providing aid to terrorists). In the wake of the decisions, there was a renewed effort to pass a federal shield law—though the proposed law would not have provided absolute protection in cases of national security—but, with the rise of WikiLeaks, that discussion died.

The Timess case provides the facts most similar to the A.P.’s. The prosecutor had asked the Times to provide phone records; when the Times refused, he threatened to get the records directly from the phone companies. The Times then went to court and sought a declaratory judgment that its records were protected by reporter’s privilege. The Second Circuit ruled that phone records—even those held by a third party, such as a phone company—were subject to the same common-law privilege that would apply to the journalists’ own records. However, the court noted that there wasn’t a constitutional privilege to refuse to disclose such records to a criminal grand jury, and that any common-law privilege would be not absolute but “qualified”—meaning that it could be overcome by a compelling government interest. The Circuit, however, declined to define the privilege, other than to say that it wouldn’t stand up in the case before it.

Crucially, though the Times lost that case, 2–1, all of the judges agreed that government could not act unilaterally, without judicial review. As Judge Sack said in dissent:

For the question… is not so much whether there is protection for the identity of reporters’ sources, or even what that protection is, but which branch of government decides whether, when, and how any such protection is overcome.

He added, “Judge Winter’s opinion makes clear that the government’s demonstration of ‘necessity’ and ‘exhaustion’ must, indeed, be made to the courts, not just the Attorney General.”

In the A.P.’s case, though, the latter is exactly what did happen. (Though since Eric Holder, the Attorney General, said Tuesday that he recused himself, that demonstration wasn’t even made to him, but to someone else in the Department of Justice.) The Department of Justice chose to avoid the court system—and its independent check on the Department’s power—by serving its subpoenas directly on the phone companies without telling the A.P. In so doing, it apparently relied on an exception to its own policy of notifying a media company in advance of a subpoena if doing so “would pose a substantial threat to the integrity of the investigation.”

If, as has been reported, the grand jury is investigating the leak of information concerning the C.I.A. foiling in Yemen of an Al-Qaeda plot to bomb an airliner heading to the United States, it is hard to understand how a later request for phone records would pose a threat to the integrity of the investigation. This request for two months of records was ostensibly made after the calls were made. If the government had a suspicion that one of its employees was the leak, it could go to a court itself and seek a wiretap of that employee. (Of course, they would have to make a showing of probable cause, which they were able to skip by going directly to the A.P.’s phone companies.) There would seem to be no reason not to let the media organization know that it wanted phone records of calls already made—after all, what was the rush? Let the courts decide whether the Justice Department really needs those records or not.

Then again, this is the Obama/Holder “due process is not judicial process" DoJ.

See also: There’s a Place for Resolving Disputes, and the Administration Chose Not To Use It by Marcy Wheeler.

Both [AG Eric] Holder and [Deputy AG James] Cole declared their commitment — and that of President Obama — to press freedoms. Mr. Cole said the administration does not “take lightly” such secretive trolling through media records. We are not convinced. For more than 30 years, the news media and the government have used a well-honed system to balance the government’s need to pursue criminals or national security breaches with the media’s constitutional right to inform the public. This action against The A.P., as the Reporters Committee for Freedom of the Press outlined in a letter to Mr. Holder, “calls into question the very integrity” of the administration’s policy toward the press.

NYT Editorial Board, Spying on The Associated Press

Mr. Holder said the leak under scrutiny, believed to be about the foiling of a terrorist plot in Yemen a year ago, “put the American people at risk,” although he did not say how, and the records sweep went far beyond any one news article.

… The Obama administration has indicted six current and former officials under the Espionage Act, which had previously been used only three times since it was enacted in 1917. One, a former C.I.A. officer, pleaded guilty under another law for revealing the name of an agent who participated in the torture of a terrorist suspect. Meanwhile, President Obama decided not to investigate, much less prosecute, anyone who actually did the torturing.

The Justice Department is pursuing at least two major press investigations, including one believed to be focused on David Sanger’s reporting in a book and in The Times on an American-Israeli effort to sabotage Iranian nuclear works. These tactics will not scare us off, or The A.P., but they could reveal sources on other stories and frighten confidential contacts vital to coverage of government.

A Non-Combatant Terrorist? Holder Issues New Statement On Obama’s Right To Kill Citizens Without Charge or Conviction | Jonathan Turley

We previously discussed how Attorney General Eric Holder wrote a letter confirming that the President would have authority to kill citizens on U.S. soil without a charge or conviction. His answer triggered a principled filibuster by Sen. Rand Paul and another embarrassment to Democratic Senators who, again, chose personality over principle in staying silent. Now, Holder has issued a new statement. No, President Obama still claims the right to kill U.S. citizens on his sole authority. However, Holder now says that, if the citizen is “not engaged in combat on American soil,” the President cannot vaporize him. The answer leaves the constitutional claim of Obama even more confused and conflicted. Does this mean we have a third category now under the policy: citizen, citizen terrorist, and citizen non-combatant terrorist? The difference appears to determine whether you can be vaporized or speak to counsel but Holder is not explaining to the citizenry.

In his prior letter, Holder answered a question about whether the President was claiming the right to kill citizens on U.S. soil. This follows the release of a memo showing that Holder’s description of the policy at Northwestern University Law School was narrower than the actual policy described within the Administration. A memo leaked to the press shows that the Administration has adopted a virtual limitless definition of imminence: “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Last week, Holder said “It is possible I suppose to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.”

After the filibuster, Holder wrote a short terse response to Paul: “It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ The answer to that question is no.”

It is not clear how this “additional questions” differed from the first or why Holder did not answer the question previously. The use of “it has come to my attention” adds a wonderfully dishonest element to an evasive answer. It is not clear what Holder means by “engaged in combat” since the Administration memo shows that the Administration is using an absurdly broad definition of “imminent” threat under the kill list policy. Since the Administration has continued to assert that terrorists are engaged in a war against the U.S., the terse reply of Holder seems designed to preserve later flexibility.

Moreover, there is nothing in the constitutional claim of the Administration that reflects such a limitation. Deciding on where to kill a citizen would be a discretionary policy under the sweeping presidential authority described by the Administration. [++]

The Drone Question Obama Hasn’t Answered | Ryan Goodman

“It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ The answer to that question is no.” — Attorney General Eric H. Holder Jr., in a letter to Senator Rand Paul.

… The senator, whose filibuster had become a social-media sensation, elating Tea Party members, human-rights groups and pacifists alike, said he was “quite happy with the answer.” But Mr. Holder’s letter raises more questions than it answers — and, indeed, more important and more serious questions than the senator posed.

What, exactly, does the Obama administration mean by “engaged in combat”? The extraordinary secrecy of this White House makes the answer difficult to know. We have some clues, and they are troubling.

If you put together the pieces of publicly available information, it seems that the Obama administration, like the Bush administration before it, has acted with an overly broad definition of what it means to be engaged in combat. Back in 2004, the Pentagon released a list of the types of people it was holding at Guantánamo Bay as “enemy combatants” — a list that included people who were “involved in terrorist financing.”

One could argue that that definition applied solely to prolonged detention, not to targeting for a drone strike. But who’s to say if the administration believes in such a distinction?

American generals in Afghanistan said the laws of war “have been interpreted to allow” American forces to include “drug traffickers with proven links to the insurgency on a kill list,” according to a report released in 2009 by the Senate Foreign Relations Committee, then led by John Kerry, now the secretary of state.

The report went on to say that there were about 50 major traffickers “who contribute funds to the insurgency on the target list.” The Pentagon later said that it was “important to clarify that we are targeting terrorists with links to the drug trade, rather than targeting drug traffickers with links to terrorism.”

That statement, however, was not very clarifying, and did not seem to appease NATO allies who raised serious legal concerns about the American targeting program. The explanation soon gave way to more clues, and this time it was not simply a question of who had been placed on a list.

In a 2010 Fox News interview, under pressure to explain whether the Obama administration was any closer to capturing or killing Osama bin Laden, Mr. Kerry’s predecessor, Hillary Rodham Clinton, said that “we have gotten closer because we have been able to kill a number of their trainers, their operational people, their financiers.” That revelation — killing financiers — appears not to have been noticed very widely.

As I have written, sweeping financiers into the group of people who can be killed in armed conflict stretches the laws of war beyond recognition. But this is not the only stretch the Obama administration seems to have made. The administration still hasn’t disavowed its stance, disclosed last May in a New York Times article, that military-age males killed in a strike zone are counted as combatants absent explicit posthumous evidence proving otherwise.

Mr. Holder’s one-word answer — “no” — is not a step toward the greater transparency that President Obama pledged when he came into office, but has not delivered, in the realm of national security.

By declining to specify what it means to be “engaged in combat,” the letter does not foreclose the possible scenario — however hypothetical — of a military drone strike, against a United States citizen, on American soil. It also raises anew questions about the standards the administration has used in deciding to use drone strikes to kill Americans suspected of terrorist involvement overseas — notably Anwar al-Awlaki, the American-born cleric who was killed in a drone strike in Yemen in 2011.

Is there any reason to believe that military drones will soon be hovering over Manhattan, aiming to kill Americans believed to be involved in terrorist financing? No.

But is it well past time for the United States government to specify, precisely, its views on whom it thinks it can kill in the struggle against Al Qaeda and other terrorist forces? The answer is yes.

The Obama administration’s continued refusal to do so should alarm any American concerned about the constitutional right of our citizens — no matter what evil they may or may not be engaged in — to due process under the law. For those Americans, Mr. Holder’s seemingly simple but maddeningly vague letter offers no reassurance.

Ryan Goodman is a professor of law and co-chairman of the Center for Human Rights and Global Justice at New York University.

“Engaged in Combat” | emptywheel

Last night, Rand Paul said this:

Well, words do make a difference, and I would feel a little more comfortable if we would get in writing a letter that says he doesn’t believe killing people not actively engaged in combat with drones in America, on American soil, is constitutional.

Today, Eric Holder wrote Paul this letter.

It has come to my attention that you have now asked an additional question. “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.

Aside from noting that Holder took out the “actively” modifier in Paul’s statement (though Paul said some version of this so many times last night that Holder’s formulation might be justified by one of those other ones), I’d have to say that Paul has only managed to move the pea under a different shell in this shell game.

Because now we need a definition of what “engaged in combat” means.

Eric Holder is an early favorite to win the 2013 Alberto Gonzales Prize for the Advancement of Coyness.

Holder’s comments don’t come as a total surprise. His underlings had already made similar confessions to The New York Times last year, after they declined to prosecute HSBC for flagrant, years-long violations of money-laundering laws, out of fear that doing so would hurt the global economy. Lanny Breuer, formerly in charge of doling out the Justice Department’s wrist slaps to banks, told Frontline as much in the documentary “The Untouchables,” which aired in January. Some observers have defended the Justice Department, suggesting that prosecuting law-breaking banks would amount to a death penalty that could upset the financial system and trigger another recession — although nobody really knows if it would do any such thing. But by not prosecuting law-breaking banks, and confessing to its terror of prosecuting those banks, the Justice Department has waved a big checkered flag to the biggest banks to go ahead and break all of the laws they want. Eric Holder Admits Some Banks Are Just Too Big To Prosecute (via gonzodave)

(via gonzodave)