The American Bear

› Worse Than The AP Phone Scandal | Ken Klippenstein

Before Attorney General Eric Holder oversaw a Justice Department that secretly seized AP journalists’ phone records, he was guilty of something even worse, and closely related to the AP scandal. He argued a little-known case before the Supreme Court called Holder v. Humanitarian Law Project, which found that speech (and other forms of nonviolent advocacy) could be construed as material support for terrorist organizations. The case involved a U.S.-based non-profit organization, the Humanitarian Law Project, which, according to its website, is “dedicated to protecting human rights and promoting the peaceful resolution of conflict by using established international human rights laws and humanitarian law.” It also enjoys a consultive status at the UN; so, in other words, hardly a radical organization.

The Humanitarian Law Project advised groups designated by the Secretary of State as “terror organizations” to enter into peace negotiations and the UN process. Holder argued that such advice was the same as material support for terrorist organizations. Elena Kagan (at the time Obama’s Solicitor General appointee) formally assisted Holder in his argument. Holder and Kagan won the case. Shortly thereafter, Obama promoted her to Supreme Court Justice. Back when he was a Senator, Obama wrote, “There is one way, over the long haul, to guarantee the appointment of judges that are sensitive to issues of social justice, and that is to win the right to appoint them by recapturing the presidency”. To the layperson, social justice and civil liberties would seem to be related; but Harvard-educated constitutional law scholars know better.

The High Court’s decision in favor of the Obama administration prompted criticism from President Jimmy Carter:

“We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The ‘material support law’ – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.”

Noam Chomsky has described Holder v. Humanitarian Law as “the first major attack on freedom of speech in the United States since the notorious Smith Act back around 1940.” I emailed him, asking why things like Obama’s NDAA are getting so much more attention than far more harmful Holder v. Humanitarian Law. Chomsky wrote back, “I agree with you that this is far more important than NDAA, and have been arguing that for some time, with no effect.”

Just as the Obama administration stifled speech in Holder v. Humanitarian Law, they did the same thing when they targeted AP journalists. Quite likely, the journalist’s great sin was exposing the story of a CIA operation in Yemen. We don’t know why the administration needs to know the identity of the journalist responsible for the story, because they won’t say. However, Holder assures us that “This was a very serious—a very serious leak, and a very, very serious leak.”

Very well put, Holder.

Given Obama’s enthusiasm for prosecuting whistleblowers, one might be led to think that he’s opposed to leaks. Not so, as evidenced by Obama’s leak of his “kill list” to the Times for political gain—among other intentional leaks. The “kill list” represented a top-secret leak, unlike the lower security clearance level of so many leaks that the administration has prosecuted with alacrity. The effect of Obama’s leak prosecutions, coupled with his hypocritical employment of leaks, is to concentrate power in his own hands. (History shows how well it turns out when charismatic leaders are permitted to consolidate power.) As constitutional and civil rights litigator Glenn Greenwald’s careful analysis of the topic has argued,

“Their unprecedented attacks on whistleblowers ensures that only the White House but nobody else can disclose classified information to the public, which is another way of saying that they seek to seize the ultimate propaganda model whereby the president and he alone controls the flow of information to the public. That’s what their very selective and self-serving war on leaks achieves.”

By use of the term ‘propaganda model,’ Greenwald is probably referring to Chomsky and Herman’s landmark book, Manufacturing Consent. The book demonstrated empirically that the mainstream media are biased in the favor of elite interests, largely because the information it disseminates is subject to five different filters (things like corporate ownership). Obama is trying to introduce a sixth filter, namely himself. Simply put, Obama is attempting to acquire a monopoly on leaks—a chilling prospect. [++]

› Holder Isn't Sure How Often Reporters' Records Are Seized | NPR

During an interview with NPR’s Carrie Johnson on Tuesday, Holder was asked how often his department has obtained such records of journalists’ work.

”I’m not sure how many of those cases … I have actually signed off on,” Holder said. “I take them very seriously. I know that I have refused to sign a few [and] pushed a few back for modifications.”

On Morning Edition, Carrie added that Holder declined to say whether there will be a review of the Justice Department’s policy on searches of reporters’ records.

Glad to see he takes it seriously. And here I am thinking this was just the latest in a long series of pranks started on 9/12/01 to see how much shit the DoJ could get away with before anyone started to notice.

› Hear Ye, Future Deep Throats: This Is How to Leak to the Press | Nicholas Weaver

We now live in a world where public servants informing the public about government behavior or wrongdoing must practice the tradecraft of drug dealers and spies. Otherwise, these informants could get caught in the web of administrations that view George Orwell’s 1984 as an operations manual.

With the recent revelation that the Department of Justice under the Obama administration secretly obtained phone records for Associated Press journalists — and previous subpoenas by the Bush administration targeting the Washington Post and New York Times — it is clear that whether Democrat or Republican, we now live in a surveillance dystopia beyond Orwell’s Big Brother vision. Even privately collected data isn’t immune, and some highly sensitive data is particularly vulnerable thanks to the Third Party Doctrine.

So how can one safely leak information to the press?

Well, it’s hard. Even the head of the CIA can’t email his mistress without being identified by the FBI. With a simple subpoena or warrant, the FBI can obtain historical calling information (and with cellphones, location history); email messages (and records revealing the pattern of where and when the target accessed these accounts); internet activity; and much more.

Since even separate, innocuous contacts between a reporter and source may be sufficient for the FBI to establish a relationship in its investigations — and who knows what kind of leak triggers a crackdown — here’s my guide for potential leakers. [continue]

› 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 Times’s Judith Miller and Time’s 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 Times’s 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.

› Justice Department Investigation of AP Part of Larger Pattern to Intimidate Sources and Reporters | Trevor Timm

As part of a new leak investigation, the Justice Department has secretly obtained the call records for twenty phone lines owned by the Assocated Press (AP), which could put sources for as many as one hundred reporters at risk. The AP called the move a “massive and unprecedented intrusion,” saying they “regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.”

We agree. It’s time to stop looking at all of these leak investigations and prosecutions as ancillary to press freedom; they are a direct attack on it. This should be an important wake-up call for journalists.

While this incident has brought the Justice Department’s crackdown on leakers to a new extreme, it’s important to remember, this storm has been brewing for a while now. In five years, the Obama administration has prosecuted more leakers under the Espionage Act than all other administrations combined, and virtually all these prosecutions have engulfed journalists one way or another.

As part of this current investigation, we’ve known the FBI has been data mining government officials’ phone and email records for months, looking for links to journalists on a systematic scale. The Washington Post reported in January, the FBI is using new, “sophisticated software to identify names, key words and phrases embedded in e-mails and other communications, including text messages, which could lead them to suspects.”

According to the Post, “The FBI also looks at officials’ phone records — who called whom, when, for how long.” Anytime the FBI found a government official has contact with the unknown number of “particular” journalists, FBI agents were “confronting” officials with this information.

A similar leak investigation to the one that has engulfed the AP is aimed at New York Times sources for its investigation into secret US cyberattacks. The government refused to comment if the Justice Department has gone to similar extremes with the New York Times’ phone lines.

Regardless, as the New York Times reported on their front page in August of last year, these leak investigations are “casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings.” The Huffington Post recently interviewed several of the nation’s most prominent national security journalists, all of whom confirmed it’s a perilous time for journalists who are reporting on what the government considers secret.

The Justice Department does not deny this. When asked about the Obama administration’s crackdown on leakers last June, a senior Justice Department (DOJ) official told longtime national security reporter Shane Harris that the DOJ is “out for scalps.” Harris’ DOJ source also “made it clear that reporters who talked to sources about classified information were putting themselves at risk of prosecution.”

And it may be about to get worse. [continue]

› “A Full Two Month Period” that Covers John Brennan’s Entire Drone Propaganda Campaign | emptywheel

AP’s most recent story on the seizure seems to suggest that “full two-month period” spanned April and May of last year.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012.

If so, it means the government grabbed phone records for Adam Goldman, Matt Apuzzo, Kimberly Dozier, Eileen Sullivan, and Alan Fram for three weeks after (and five weeks before) the UndieBomb 2.0 story Goldman and Apuzzo by-lined.

That would mean they’d get the sources for this Kimberly Dozier story published May 21 which starts,

White House counterterror chief John Brennan has seized the lead in guiding the debate on which terror leaders will be targeted for drone attacks or raids, establishing a new procedure to vet both military and CIA targets.

The move concentrates power over the use of lethal U.S. force outside war zones at the White House.

The process, which is about a month old, means Brennan’s staff consults the Pentagon, the State Department and other agencies as to who should go on the list, making a previous military-run review process in place since 2009 less relevant, according to two current and three former U.S. officials aware of the evolution in how the government targets terrorists.

Within 10 days of the time Dozier published that story, John Brennan had rolled out an enormous propaganda campaign — based on descriptions of the drone targeting process that Brennan’s power grab had replaced, not the new drone targeting process — that suckered almost everyone commenting on drones that drone targeting retained its previous, more deliberative, targeting process, the one Brennan had just changed.

And that propaganda campaign, in turn, hid another apparent detail: that UndieBomb 2.0, a Saudi sting had actually occurred earlier in April, and that UndieBomb 2.0 preceded and perhaps justified the signature strikes done at the behest of the Yemenis (or more likely the Saudis).

April 18: Greg Miller first reports on debate over signature strikes

Around April 20: UndieBomb 2.0 device recovered

Around April 22: John Brennan takes over drone targeting from JSOC

April 22: Drone strike that–WSJ reports, “Intelligence analysts [worked] to identify those killed” after the fact, suggesting possible signature strike

April 24: Robert Mueller in Yemen for 45 minute meeting, presumably to pick up UndieBomb

April 25: WSJ reports that Obama approved use of signature strikes

April 30: John Brennan gives speech, purportedly bringing new transparency to drone program, without addressing signature strikes

May 6: Fahd al-Quso killed

May 7: AP reports on UndieBomb 2.0

May 8: ABC reports UndieBomb 2.0 was Saudi-run infiltrator

May 15: Drone strike in Jaar kills a number of civilians

Now, frankly, I think the witch hunt response to the UndieBomb 2.0 plot was mostly just an excuse to start investigating the AP, though it did lead John Brennan to make it clear that it was a Saudi-manufactured plot in the first place.

But the response to that Dozier article, which provided the final piece of evidence for the timeline above showing Brennan grabbed control of drone targeting at roughly the moment we started signature strikes in Yemen, was more dramatic, at least in terms of the breathtaking propaganda the White House rolled out to pretend the drone strikes were more orderly than they actually were.

I’m guessing, but when [AP’s President Gary] Pruitt says this,

These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.

I’m guessing he might have other AP stories in mind.

I know I’m as least as worried about DOJ targeting Dozier’s sources, who revealed a critical detail of how illegal the drone program was, as I am about the original UndieBomb 2.0 story.

› Govt obtains wide AP phone records in probe

The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

In a letter of protest sent to Attorney General Eric Holder on Monday, AP President and Chief Executive Officer Gary Pruitt said the government sought and obtained information far beyond anything that could be justified by any specific investigation. He demanded the return of the phone records and destruction of all copies.

“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations and disclose information about AP’s activities and operations that the government has no conceivable right to know,” Pruitt said.

The government would not say why it sought the records. Officials have previously said in public testimony that the U.S. attorney in Washington is conducting a criminal investigation into who may have provided information contained in a May 7, 2012, AP story about a foiled terror plot. The story disclosed details of a CIA operation in Yemen that stopped an al-Qaida plot in the spring of 2012 to detonate a bomb on an airplane bound for the United States.

In testimony in February, CIA Director John Brennan noted that the FBI had questioned him about whether he was AP’s source, which he denied. He called the release of the information to the media about the terror plot an “unauthorized and dangerous disclosure of classified information.”

Prosecutors have sought phone records from reporters before, but the seizure of records from such a wide array of AP offices, including general AP switchboards numbers and an office-wide shared fax line, is unusual.

In the letter notifying the AP, which was received Friday, the Justice Department offered no explanation for the seizure, according to Pruitt’s letter and attorneys for the AP. The records were presumably obtained from phone companies earlier this year although the government letter did not explain that. None of the information provided by the government to the AP suggested the actual phone conversations were monitored.

Among those whose phone numbers were obtained were five reporters and an editor who were involved in the May 7, 2012, story.

Jesus.