"A serious interference with AP's constitutional rights..."
May 13, 2013 2:34 PM   Subscribe

"The U.S. Department of Justice notified The Associated Press on Friday, May 10, that it had secretly obtained telephone records for more than 20 separate telephone lines assigned to AP journalists and offices, including cell and home phone lines."

AP: GOVT OBTAINS WIDE AP PHONE RECORDS IN PROBE
The records obtained by the Justice Department listed incoming and outgoing calls, and the duration of each call, for the work and personal phone numbers of individual reporters, general AP office numbers in New York, Washington and Hartford, Conn., and the main number for AP reporters in the House of Representatives press gallery, according to attorneys for the AP.

The government would not say why it sought the records. U.S. officials have previously said in public testimony that the U.S. attorney in Washington is conducting a criminal investigation into who may have leaked 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 a letter to Attorney General Eric Holder, AP President and CEO Gary Pruitt vehemently protested the intrusion, stating that "we regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news." [pdf]
posted by BobbyVan (291 comments total) 27 users marked this as a favorite

 
So did they have warrants or anything? I feel like we've got the first sentence of a story but nothing else.
posted by Pope Guilty at 2:37 PM on May 13, 2013 [3 favorites]


From the AP article:
Justice Department published rules require that subpoenas of records from news organizations must be personally approved by the attorney general but it was not known if that happened in this case. The letter notifying AP that its phone records had been obtained though subpoenas was sent Friday by Ronald Machen, the U.S. attorney in Washington.
posted by BobbyVan at 2:40 PM on May 13, 2013


So has any info on the "more than 20" (I know LOTS of numbers larger than 20) lines been revealed, or are they going to let everyone who has ever talked to an AP reporter sweat for a bit and see if they want to volunteer some new information to the DOJ?
posted by antonymous at 2:41 PM on May 13, 2013 [3 favorites]


I think they only need a warrant if they want to listen in:
Listening to your phone calls without a judge's warrant is illegal if you're a U.S. citizen. But police don't need a warrant — which requires showing "probable cause" of a crime — to get just the numbers you called and when you called them, as well as incoming calls, from phone carriers. Instead, police can get courts to sign off on a subpoena, which only requires that the data they're after is relevant to an investigation — a lesser standard of evidence. [source]
posted by cosmic.osmo at 2:42 PM on May 13, 2013 [8 favorites]


The letter notifying AP that its phone records had been obtained though subpoenas was sent Friday

When I see the word "subpoena," I used to think of something that was signed by a judge. But it seems the information here ("phone records," which is vague) could be requested with an administrative subpoena, which requires no judicial oversight, correct?
posted by antonymous at 2:47 PM on May 13, 2013 [1 favorite]


The line between the Valarie Plame investigation and this action is bright, bold and straight.
posted by humanfont at 2:57 PM on May 13, 2013 [2 favorites]


Isn't it rather courteous of the DoJ to take that extra step of informing the AP?

If they are doing things extra-legally, why tell everyone?
posted by banal evil at 2:58 PM on May 13, 2013 [5 favorites]


Well, that's one way to distract people from Benghazi and the IRS scandal.
posted by RobotVoodooPower at 2:59 PM on May 13, 2013 [4 favorites]


Attorney General Eric Holder just happens to be scheduled to testify before the House Judiciary Committee on Wednesday for a hearing entitled "Oversight of the United States Department of Justice."
posted by BobbyVan at 2:59 PM on May 13, 2013 [1 favorite]


I suppose they could have used a national security letter, which I understand have very little judicial oversight. Those usually (but not always) have gag orders attached, so it would be unlikely the AP would have found out if one where used.
posted by cosmic.osmo at 3:01 PM on May 13, 2013


There's a little bit of "We've established what you are, now we're discussing the price," here, in as much as the difference seems to be more one of degree than kind from previous snoopery.

Still, ugh.
posted by PMdixon at 3:02 PM on May 13, 2013 [1 favorite]


Ben Wizner, director of the ACLU Speech, Privacy, and Technology Project:
"Obtaining a broad range of telephone records in order to ferret out a government leaker is an unacceptable abuse of power. Freedom of the press is a pillar of our democracy, and that freedom often depends on confidential communications between reporters and their sources."
posted by BobbyVan at 3:06 PM on May 13, 2013 [5 favorites]


This is like a commercial for how we should all be using strong crypto, untraceable and out of the reach of even the most determined governments, for our communications. It's like the DoJ is telling the AP, "Look, you screwed up. You trusted us."
posted by mullingitover at 3:09 PM on May 13, 2013 [13 favorites]


Some more details from the bolded, below the fold link:
The Justice Department lays out strict rules for efforts to get phone records from news organizations. A subpoena can only be considered after "all reasonable attempts" have been made to get the same information from other sources, the rules say. It was unclear what other steps, in total, the Justice Department has taken to get information in the case.

A subpoena to the media must be "as narrowly drawn as possible" and "should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period," according to the rules.

The reason for these constraints, the department says, is to avoid actions that "might impair the news gathering function" because the government recognizes that "freedom of the press can be no broader than the freedom of reporters to investigate and report the news."

News organizations normally are notified in advance that the government wants phone records and enter into negotiations over the desired information. In this case, however, the government, in its letter to the AP, cited an exemption to those rules that holds that prior notification can be waived if such notice, in the exemption's wording, might "pose a substantial threat to the integrity of the investigation."

It is unknown whether a judge or a grand jury signed off on the subpoenas.
That's some exemption. Seems like it grants the DOJ carte blanche; an aggrieved news org would have to fight the seizure in court. Meanwhile, DOJ investigators can zero in on the whistle blower/leaker.
posted by notyou at 3:11 PM on May 13, 2013 [3 favorites]


When I see the word "subpoena," I used to think of something that was signed by a judge. But it seems the information here ("phone records," which is vague) could be requested with an administrative subpoena, which requires no judicial oversight, correct?

Does it matter? Does the letter of the law matter? We know the spirit doesn't, that's been shown abundantly. And as GWB demonstrated, the letter doesn't matter much either. Obama has assured that the turd train is bi-partisan when it comes to 'security'.

I have long since grown incurious as to what rights I may or may not have - I assume that whatever rights I may have theoretically, are always dependent on such a huge bag of exceptions that those rights remain purely theoretical.

And even when laws are broken, unless there's partisan percentage in it, when it comes to "national security", those are not really investigated. And when investigated, a slap on the wrist results - at best.

I used to be angry about it, then cynical, and at this point, I'm serene.

You should operate under the assumption - whoever you are - that you have no privacy, no rights and no recourse. Makes things simple. All your mail may be read, all your phone conversations eavesdropped on and so forth. Now you can relax and not worry that a right of yours is being trampled upon. You have none.

So asking about under what circumstances which law applies etc., strikes me like discussing how many angels fit on the head of a pin - of mild intellectual interest at best, but having no relevance to reality.

I do salute those still fighting, brave Spartans, all 300 of you.
posted by VikingSword at 3:11 PM on May 13, 2013 [25 favorites]


Wonder if we can go back and argue that FISA case in the Supreme Court again? You know, the one where journalists have a totally speculative fear of being surveilled?
posted by RobotVoodooPower at 3:16 PM on May 13, 2013 [7 favorites]


The original AP article in question.
posted by pjenks at 3:17 PM on May 13, 2013 [7 favorites]


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 plot was significant both because of its seriousness and also because the White House previously had told the public it had "no credible information that terrorist organizations, including al-Qaida, are plotting attacks in the U.S. to coincide with the (May 2) anniversary of bin Laden's death."


The reason is pretty clear: one mustn't make the big boys look bad.
posted by cosmic.osmo at 3:18 PM on May 13, 2013 [2 favorites]


So they're trying to ferret out a leak in the Justice Dept.? And using National Security laws to do it? Usually I'm a current administration fanboy but this is some Batgirl shit.
posted by Potomac Avenue at 3:20 PM on May 13, 2013 [5 favorites]


I would've thought that news organizations, especially ones as big as AP, would be on the technological forefront of end-to-end phone encryption :/
posted by slater at 3:29 PM on May 13, 2013


.
posted by brina at 3:34 PM on May 13, 2013


@slater: the administration only asked for the metadata information (source phone number, destination phone number, times/dates, etc), not the content. You can't encrypt that part of the conversation if you're going to use the normal telephone system.

Although I suppose you COULD come up with some sort of tor like routing for public phones if you wanted to.
posted by sbutler at 3:35 PM on May 13, 2013 [3 favorites]


Maybe Bloomberg is behind this to draw attention away from their own troubles.
posted by chavenet at 3:37 PM on May 13, 2013


Use encryption people.
The line between the Valarie Plame investigation and this action is bright, bold and straight.
Oh, because there's no way this would have happened if not for that. It's not like the Obama administration has been clamping down on leakers of all types as hard as possible.

That said, the basic rational is about the same, I think. If you're a journalist and you're being given top-level information by a government source, that means you're also witnessing a crime, that is, the leaking of the information.

So I don't really get why people think it would have been against the law for the government to do this. There isn't any federal journalist shield law. And as far as I know, if they're just going for the phone records, rather then the actual 'content' they don't even need a warrant.
You should operate under the assumption - whoever you are - that you have no privacy, no rights and no recourse. Makes things simple. All your mail may be read, all your phone conversations eavesdropped on and so forth.
Or you could, you know, use encryption.
posted by delmoi at 3:40 PM on May 13, 2013 [3 favorites]


They read emails without a warrant as well, even though they are supposed to get one.
In 2010, the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages to law enforcement....

Not only does the FBI claim it can read emails and other electronic communications without a warrant—even after a federal appeals court ruled that doing so violates the Fourth Amendment—but the [recently received FOIA] documents strongly suggest that different U.S. Attorneys’ offices around the country are applying conflicting standards to access communications content.
posted by snaparapans at 3:42 PM on May 13, 2013 [1 favorite]


This is like a commercial for how we should all be using strong crypto, untraceable and out of the reach of even the most determined governments, for our communications. It's like the DoJ is telling the AP, "Look, you screwed up. You trusted us."

I would've thought that news organizations, especially ones as big as AP, would be on the technological forefront of end-to-end phone encryption :/

I don't think crypto of any kind would have helped: the only information they asked for was lists of "incoming and outgoing calls, and the duration of each call." An encrypted call over the telephone network would leave the same kind of info as an unencrypted one. I think what they want to do is to correlate number that have called the AP with the numbers of people who had the leaked information.

To resist stuff like this, what they really need to do is buy disposable prepaid phones with cash, activate them at random payphones, not share them between sources, and dispose of them regularly. Then the AP advertises a number for leakers to call from a public payphone or disposable phone, and they exchange numbers. If government subpoenas the AP's telephone company, the leaker's number won't show up (dead end), and if they subpoena the leaker, they'll only see calls to a prepaid phone (dead end again). They'd have to connect the prepaid phone(s) to the AP first to learn or confirm anything.
posted by cosmic.osmo at 3:49 PM on May 13, 2013 [2 favorites]


There isn't any federal journalist shield law.

Who cares? How can a democracy function at all without journalism? Freedoms like those aren't enshrined in laws - they are the basis by which states claim the legitimacy to make laws in the first place.
posted by phrontist at 3:49 PM on May 13, 2013 [8 favorites]


Those saying "duh, should have used encryption!" are conceding that journalism is an underground endeavor in the U.S. now. Jesus.
posted by phrontist at 3:54 PM on May 13, 2013 [31 favorites]


One of the first things that pissed me off about the Obama administration was its blithe attitude toward the telecoms and warrentless wiretapping under Bush.

This is also the sort of shit that our government should not be involved in.
posted by klangklangston at 3:55 PM on May 13, 2013 [8 favorites]


To resist stuff like this, what they really need to do is buy disposable prepaid phones with cash, activate them at random payphones, not share them between sources, and dispose of them regularly.

You know, like insurgents and drug dealers.
posted by phrontist at 3:56 PM on May 13, 2013 [4 favorites]


This like this are also why I would support a constitutional amendment clarifying a right to privacy, and simultaneously restricting the government's ability to do things like this and empowering the government to put active restraints on private use of big data.
posted by klangklangston at 3:58 PM on May 13, 2013 [3 favorites]


>encryption

Would not impact the collection of the data they said they collected.

>buy disposable prepaid phones with cash

This crypto fantasy stuff will not protect you.

The money quote FTA: "Perhaps the most important single statement in the ruling refers to the fact that there is no Fourth Amendment violation in use of these techniques because there is no reasonable expectation of privacy in the voluntary use of a voluntarily bought phone--even one that is pay-as-you-go"
posted by anti social order at 4:00 PM on May 13, 2013 [12 favorites]


Who cares? How can a democracy function at all without journalism?

If enough people are persuaded by that, then the people can enact shield laws. If people aren't terribly excised over it, then we'll probably have something like we have currently: loose internal policies that place some restrictions on the manner in which call logs are taken.

One of the first things that pissed me off about the Obama administration was its blithe attitude toward the telecoms and warrentless wiretapping under Bush.

what really, really bothered me about Bush's program was that it was flatly illegal. eg, my outrage grew out of the separation of powers and rule of law that undergirds our system. In this case, what the DOJ was probably legal. If we don't like it, our remedy is regular democracy stuff: change the law.
posted by jpe at 4:03 PM on May 13, 2013 [5 favorites]


I feel like we've got the first sentence of a story but nothing else.

that's exactly how "they" want it - you get the first sentence of a story but nothing else

welcome to our brave new world of government approved journalism
posted by pyramid termite at 4:06 PM on May 13, 2013 [2 favorites]


All these legal cases are basically academic, because the blunt fact of the matter is that pretty well any government agency can surveil you for any reason they like, or no reason at all - and if they get caught doing it and they haven't done the correct legal things, they won't lose their job or get reprimanded, let alone go to jail.

The legalisms deal with two things:

* Can the government, agencies or law enforcement compel third-parties to give up your data to them?
* Can the resulting evidence be admissible in court?

and the horse has basically left the barn for the first one, because most of the third-parties cooperate with the government simply by being asked nicely.

As for the second, this still has some meaning, but given that both Republicans and Democrats both now agree that you can be either assassinated or held in indefinite detention without their having to present any evidence at all before, during or faster, it's becoming more meaningless every day.

> One of the first things that pissed me off about the Obama administration was its blithe attitude toward the telecoms and warrentless wiretapping under Bush.

Don't forget that primary candidate Obama spoke very movingly about how bad the FISA bill was - before presidential candidate Obama voted for that bill - before President Obama simply wrote off the whole subject. It's not like he's not aware of the implications - he knows exactly well how bad it is and has explained the problems very well not so many years ago.

This is what Americans want. Both the Republicans and the Democrats are in agreement about this, as they are about so many other matters, and this was very clear before the last election - where only a vanishingly small number of Americans voted for anyone other than the Democrats and the Republicans, even in states such as mine where it's a mathematical certainty that your vote for R or D will be completely meaningless.

This is what Americans want, this is what they voted for, and if you voted either R or D you really have no business whatsoever complaining.
posted by lupus_yonderboy at 4:07 PM on May 13, 2013 [2 favorites]


> If we don't like it, our remedy is regular democracy stuff: change the law.

Great! What's your plan to accomplish that?
posted by lupus_yonderboy at 4:08 PM on May 13, 2013 [1 favorite]


Get to persuadin'. (call your rep, senator, etal)
posted by jpe at 4:09 PM on May 13, 2013 [1 favorite]


This just in:

AP complains about AP being investigated for helping leak classified information. Doesn't deny the fact that they helped leak it. Feels that their sources should be protected unconditionally, though legally, they are not. ACLU agrees with AP.

Government feels otherwise.

It's almost as though secret intelligence regarding the methods used to stop a pending terrorist attack cold was something the government wanted to protect, for some strange reason...
posted by markkraft at 4:09 PM on May 13, 2013


> Get to persuadin'.

No, seriously - what's your plan? Who, exactly, do you plan to persuade?
posted by lupus_yonderboy at 4:10 PM on May 13, 2013


I'm shocked, shocked, to hear that Americans are being treated the way that US gov't agencies treat foreigners.
posted by ceribus peribus at 4:11 PM on May 13, 2013 [2 favorites]


AP complains about AP being investigated for helping leak classified information. Doesn't deny the fact that they helped leak it. Feels that their sources should be protected unconditionally, though legally, they are not.

Who else spent a couple of months being absolutely infuriated at the media calling Judith Miller a hero for helping to sell the Iraq War? Anybody?
posted by Pope Guilty at 4:11 PM on May 13, 2013 [6 favorites]


The month of May is turning into an early Christmas for Conservatives.
posted by Rashomon at 4:17 PM on May 13, 2013 [2 favorites]


You know, like insurgents and drug dealers.

Yes, there are other groups besides journalists that have an interest in resisting government surveillance.
posted by cosmic.osmo at 4:17 PM on May 13, 2013


"The month of May is turning into Christmas for Conservatives."

It may be raining red meat, but public opinion remains more or less constant.

Haters be hatin', because haters love to hate.

Alternately... rational people be rationalizin'?!
posted by markkraft at 4:20 PM on May 13, 2013


snoopers be snoopin'
posted by pyramid termite at 4:23 PM on May 13, 2013


The interesting thing to me about stuff like this is that we only see the outcome of surveillance when the government actually wants to try and use it in court. If no one cares about whether the information will stand up in court, what kind of controls are put on it then, if this is what we see when there nominally are controls?
posted by feloniousmonk at 4:23 PM on May 13, 2013 [3 favorites]


You know, like insurgents and drug dealers.

Yes, there are other groups besides journalists that have an interest in resisting government surveillance.
posted by cosmic.osmo at 4:17 PM on May 13 [+] [!]


Is it wrong if I want to have a serious discussion about whether such interests, or rights, are unconditionally inviolable? Specifically here, in light of national security concerns?
posted by SollosQ at 4:24 PM on May 13, 2013 [2 favorites]


This is like a commercial for how we should all be using strong crypto, untraceable and out of the reach of even the most determined governments, for our communications. It's like the DoJ is telling the AP, "Look, you screwed up. You trusted us."
Crypto will not save your privacy. Consider this analogy: Encryption will protect your privacy about as much as a bullet proof vest protects you from getting shot.

A bulletproof vest stops the most efficient attack (bullet to the heart). It does nothing to prevent you being shot in the head, foot, knees, etc. It also doesn't stop a larger caliber weapon.

In the same way encryption can prevent casual snooping, but it could probably be decrypted by a backdoor, or some form of brute force key guessing on part of a determined attacker.

Encryption does almost nothing to stop traffic analysis (the tracking of who you talk to, and for how long). It also doesn't prevent outright recording of everything, to be decrypted later.

Encryption does nothing to defend you if your machine can be remotely compromised by some corporate or TLA overlord.

If you have a secure host talking to an encrypted darknet carrying a steady stream of real and well generated content to a very large number of users, you might be able to maintain some privacy for as long as that network remains un-subverted.

I don't think it is now within the capabilities of ANY corporation, nation state, or hacker group to build and maintain such a network for an significant amount of time.
posted by MikeWarot at 4:24 PM on May 13, 2013 [8 favorites]


what really, really bothered me about Bush's program was that it was flatly illegal.

Now that it's bigger, better, and justified by secret interpretations of the law, it's good?
posted by RobotVoodooPower at 4:26 PM on May 13, 2013 [2 favorites]


Encrypting your phone call is like using SSL on a website. It provides about the same level of anonymity and protection (superficial), although of course your phone encryption is probably not vulnerable to the exact same issues as SSL certs, because of course, it comes with its own vulnerabilities.
posted by feloniousmonk at 4:31 PM on May 13, 2013 [1 favorite]


How can a democracy function at all without journalism?

Which is what I ask myself when I read most of the output from the AP. The biggest surprise to me is that somebody there actually did some investigative journalism.

But then again, the leaker might have intended to embarrass the Administration, which it didn't at the time but is now paying off big time.
posted by oneswellfoop at 4:32 PM on May 13, 2013 [2 favorites]


"In this case, what the DOJ was probably legal. If we don't like it, our remedy is regular democracy stuff: change the law."

Yes, however part of "changing the law" means calling out abuses that while legal are anathema to principles like a free press, e.g. this situation right here. And when you wave your hands and just say "change the law" especially in reaction to people being upset, it feels dismissive and minimizing.
posted by klangklangston at 4:38 PM on May 13, 2013 [5 favorites]


"The biggest surprise to me is that somebody there actually did some investigative journalism."

Is that what they call it now when someone serves a story to you on a plate, for whatever ulterior motives they might possess?

"Anonymous government sources revealed" is just as big a pox on the nature of truth as no anonymous sources at all. As Pope Guilty implied, it's oftentimes how wars get started.

It's worth mentioning that a member of MeFi has been persecuted by the government, repeatedly searched at airports, spied upon in -- and apparently inside -- their home, made a subject of a secret Grand Jury investigation over WikiLeaks, etc.

This search of phone logs and records pursuant only to a very specific case -- with a friendly notification letter from the government -- is not that.

Of course, it's a good thing that Associated Press has been such a strong supporter of WikiLeaks, or you'd have to accuse them of hypocrisy.
posted by markkraft at 4:45 PM on May 13, 2013


The Obama administration was going to make an official announcement about the Underwear bomber plot the next day.. emptywheel has the details:
Meanwhile, John Brennan, who leaked the most damaging part of this (that it was just a Saudi sting), has since been promoted to run the CIA, even though, at least according to James Clapper’s definition, he’s a leaker....

This entire leak investigation was always a witch hunt, because sources in the Middle East were blabbing about it anyway, because John Brennan was blabbing too, and because the White House planned to blab about it the following day.

But that, apparently, didn’t stop DOJ from throwing its most aggressive weapons against Adam Goldman and Matt Apuzzo, who first broke the story.
posted by snaparapans at 5:01 PM on May 13, 2013 [2 favorites]


This search of phone logs and records pursuant only to a very specific case -- with a friendly notification letter from the government -- is not that.

I don't see how you can make that claim given that the DOJ has seized information on all "incoming and outgoing calls, and the duration of each call," for:

-"the work and personal phone numbers of individual reporters"
-"general AP office numbers in New York, Washington and Hartford, Conn."
-"the main number for AP reporters in the House of Representatives press gallery"

Does that really seem like a narrowly-tailored query as part of a "very specific case"? Are you serious when you describe the post-facto notification to the AP as "friendly"?
posted by BobbyVan at 5:04 PM on May 13, 2013 [3 favorites]


Here's what I have been able to gather from this article.

1) The AP published a story about a foiled Al Qaeda terror plot too early.
2) The DOJ said that the early leak had forced the end of an "operation which they hoped could have continued for weeks or longer."
3) Leaking classified information is a crime.
4) In the months since those revelations, the Justice Department pushed hard to uncover the source of the leak, driven in part by demands from Republican lawmakers it had endangered national security.
5) Regulations require DOJ to make "every reasonable effort" to obtain information another way before considering subpoenaing reporter phone records.
5a) The alternative option would have been to subpoena reporters themselves and ask for the identity of their sources, a tactic that would have been almost assuredly rejected by the AP.
6) Records were seized.
7) According to the AP the DOJ's regulations prohibit subpoenas of this breadth and require that notice be given to the affected people within 90 days.

Sounds like we have laws being broken to investigate other laws being broken. Clearly the DOJ's efforts seem heavy-handed at the very least. This will be interesting.
posted by Rashomon at 5:07 PM on May 13, 2013 [2 favorites]


How serious was the intelligence leak that AP instigated?
Very. Potentially life threatening.

"AP learned of the plot a week before publishing, but “agreed to White House and CIA requests not to publish it immediately” due to national security concerns. But, by reporting the CIA’s involvement in foiling the plot, they put AQAP [Al Qaeda - Arab Peninsula] on notice that the CIA had a window into their activities. The AP’s reporting also led to other stories involving an operative in place within AQAP, and details of the operations he was involved in. That operative, it was feared, would be exposed and targeted by AQAP as retribution for siding with the United States.

John Brennan, who is now the head of the CIA, said at his confirmation hearing that the release of information to AP was an “unauthorized and dangerous disclosure of classified information.” That the Department of Justice would be pursuing information on these leaks is also not new, given Attorney General Eric Holder’s appointment of federal prosecutors to look into the disclosures last year."


Naive boyscout Glenn Greenwald then proceeded to attack ThinkProgress for disclosing this bit of news... only to be rightly criticized for not letting reality get in the way of an ideological position.

I liked Oliver Willis' tweeted take on it:
Shorter Glenn Greenwald: yes you reported that the sky is blue, BUT YOU FAILED TO DENOUNCE THE SKY’S IMPERIALISM
posted by markkraft at 5:12 PM on May 13, 2013 [3 favorites]


The thing most discouraging about this, at least to me, is that this is exactly what most Americans want, as evidenced by their voting. And by the statements from everyday, ordinary 'Muricans every time a new restriction on their civil rights is introduced, "Welp, if it keeps me safe from teh terrerists, I can put up with airport frisking/black boxes at telecoms/all my internet activities logged/etc."

Listen, I don't want to say that we need to start being more cheap and cheerful with spending our lives in possible terrorist attacks, but until deaths from terrorism start becoming more than just a blip against the number of deaths from car crashes, this absurd fear of death at the hands of terrorists at the cost of your civil rights is just asinine. And fuck the media, government and defense contractors who continually beat the "fear fear fear" drums for their own ends.
posted by Purposeful Grimace at 5:17 PM on May 13, 2013 [6 favorites]


“We’re out for scalps.”
posted by RobotVoodooPower at 5:18 PM on May 13, 2013 [2 favorites]


Isn't it rather courteous of the DoJ to take that extra step of informing the AP?

That is the 2^256th dimensional ultra-chess of the most transparent administration in the history of the universe over all of time.
posted by rough ashlar at 5:18 PM on May 13, 2013 [1 favorite]


Maybe if the government's previous recent methods to try and stop terrorists didn't include things like torture people like Greenwald would be willing to give them more leeway to do all this in secret.
posted by Drinky Die at 5:20 PM on May 13, 2013 [1 favorite]


Glenn Greenwald on the Obama double standard for leaks:
(1) at the very same time that they wage an unprecedented war on whistleblowers, they themselves continuously leak national security secrets exclusively designed to glorify Obama purely for political gain; and (2) at the very same time they insist to federal courts that these programs are too secret even to confirm or deny their existence (thereby shielding them from judicial review or basic disclosure), they run around publicly boasting about their actions.
posted by snaparapans at 5:22 PM on May 13, 2013 [3 favorites]


"I don't see how you can make that claim given that the DOJ has seized information on all "incoming and outgoing calls, and the duration of each call," for..."

Your remark seems somewhat anachronistically detached from the current state of such investigations.

First off, "seized information on all"... ignores the state of technology on cases such as this. Basically, they would've had a list of people who might have received the call / calls in question, and they had a list of people who might have had the intel in question... and then they data mined to find matches.

This is not quite the same as what you are describing, as the great majority of the database in question is unqueried, and any revelations have to be specific to this case.

I used to work for a data mining company as a contractor and would be the first to admit that it does, in fact, have some very serious ramifications for personal privacy -- primarily because it's an extremely, insanely efficient and accurate way to know pretty much everything worth knowing about a person... but I'm actually far less concerned about guilty people being caught and convicted based on data mining as a result of government investigations.
posted by markkraft at 5:26 PM on May 13, 2013


This just in:
ALL YOUR INFORMATION HAS BEEN SEIZED ALREADY!
It just hasn't been data mined actually examined, most likely, because you aren't being investigated by your government.

(Just in case you overlooked that fact.)
posted by markkraft at 5:29 PM on May 13, 2013 [2 favorites]


ALL YOUR INFORMATION HAS BEEN SEIZED ALREADY!

and the telecoms have been granted immunity for all unauthorized wiretap assistance.
posted by snaparapans at 5:36 PM on May 13, 2013 [1 favorite]


markkraft:

Are you honestly arguing that the government can just tell newspapers not to publish something and they are forced to comply? Because that's completely and utterly wrong.

> Naive boyscout Glenn Greenwald

Or, wait, are you just writing bad parody? I don't think so but...
posted by lupus_yonderboy at 5:37 PM on May 13, 2013 [2 favorites]


Meanwhile in other mercantile states:

Secrets of 27m mobile phones offered to police
posted by rough ashlar at 5:40 PM on May 13, 2013


Well, I think you're serious now I've updated.

If Glenn Greenwald is a "boyscout" because he believes that Constitutional rights should be respected and that the government should obey the law, then you can call me a proud boyscout too, and every other person of conscience I've ever read or heard.

It's sad that the idea of following the law is so ridiculous that it calls for mockery.
posted by lupus_yonderboy at 5:41 PM on May 13, 2013 [6 favorites]


The problem is that the number of people who know how to use technology to ensure the privacy of communications is really small. I don't think it is that encryption can't protect our privacy; it is the users don't understand the technology. How many reporters have a GPGP key? Would you even trust them to be able to secure their machine enough to protect the key? General Petraus was caught using unencrypted gmails. He was running the CIA. Bradley Manning didn't delete or encrypt his chat logs with Julian Assange.
posted by humanfont at 5:50 PM on May 13, 2013 [2 favorites]


Basically, they would've had a list of people who might have received the call / calls in question, and they had a list of people who might have had the intel in question... and then they data mined to find matches.

Your work as a "data miner" notwithstanding, we have no way of knowing the queries were limited to the "list of people who might have had the intel in question." There's also no way of knowing how long the seized data will be maintained by the DOJ.
posted by BobbyVan at 5:51 PM on May 13, 2013 [1 favorite]


queries limited to the "list of people who might have had the intel in question."

emptywheel suggests that National Security Letters are the likely candidate.

NSL:
It is issued to a particular entity or organization to turn over various records and data pertaining to individuals. NSLs can only request non-content information, such as transactional records, phone numbers dialed or email addresses mailed to and from.
posted by snaparapans at 6:14 PM on May 13, 2013


"Are you honestly arguing that the government can just tell newspapers not to publish something and they are forced to comply? Because that's completely and utterly wrong."

Of course, I didn't say that.

However, the AP were asked to delay publication for security reasons, and also likely told not to suggest that it had to do with the CIA, because it could threaten the life of an active agent. I actually find it kind of... dickish... of AP to mention that part of things, because the way they did it was unnecessary.

Odds are actually pretty good that the CIA informant inside Al Qaeda was this guy, who amazingly switched sides, and subsequently helped the US successfully get rid of AQAP's leader, shortly after he requested the double agent to go out and get him some bomb making equipment.

>> Naive boyscout Glenn Greenwald
>Or, wait, are you just writing bad parody? I don't think so but..."


No, seriously. Naive, bigtime. Because this government is *supposed* to go to great lengths to protect the identity of CIA operatives out in the field... a fact that Greenwald has previously supported wholeheartedly. Now he just comes off as a naive, inconsistent hypocrite who is too ideologically fixated as to be fully grounded in reality.

He's increasingly a shrill demagogue, who, in this case, got upset with a liberal website because it reported the facts of the matter at hand.

And yeah, if you didn't believe Greenwald can be naive, well... here's him in his own words:
"I had not abandoned my trust in the Bush administration. Between the president’s performance in the wake of the 9/11 attacks, the swift removal of the Taliban in Afghanistan, and the fact that I wanted the president to succeed, because my loyalty is to my country and he was the leader of my country, I still gave the administration the benefit of the doubt. I believed then that the president was entitled to have his national security judgment deferred to, and to the extent that I was able to develop a definitive view, I accepted his judgment that American security really would be enhanced by the invasion of this sovereign country."

Gee. Everything was so great in the heady days of Poland, Norway, Belgium and France, with final victory seemingly right around the corner, so I gave the administration the benefit of the doubt... but that's when things started to get a little worrisome.

I would admit to being a bit naive before 9/11 myself... but I was not so naive as to think it militarily and strategically wise and advisable to send ground troops into Afghanistan, much less to invade a nation like Iraq for no good reason.

Something about occupying the lands of 65 million people for a decade just doesn't sound like a winning strategy, no matter how much some of them may like us.
posted by markkraft at 6:15 PM on May 13, 2013 [1 favorite]


Here's the thing--AP is acting like they know better than the federal judge who granted these subpoenas what their constitutional rights are.

I'm also confused whose rights they are protecting-their own, or an alleged right for government personnel to criminally leak classified information on a recent intelligence operation without consequence. AP has not been prevented from printing anything, and no reporters could get in trouble for receiving classified information because it is not illegal. The only possible right they are protecting is the right to prevent a criminal act from being prosecuted. That's not right. Are we to believe that Americans so had to know about this one operation to make momentus political choices that the interest of the justice system in prosecuting crimes? Its a question of balance in the law of criminal subpoenas. A federal judge reviewed and decided these subpoenas were lawful and proper under the Constitution. The AP is litigating in the press precisely when the Government cannot litigate in the press for fear of compromising the rights of a criminal defendant in the case.
posted by Ironmouth at 6:19 PM on May 13, 2013 [4 favorites]


What with this news and the recent outrage over the IRS auditing poitical groups specifically organized around the goal of avoiding taxes, I see the cynicism machine is chugging away at full steam again lately.

On the other hand, the AP kind of sucks anyway now that it's become a linkbait generator and press release distribution channel rather than the aggregator of quality news produced by competent, independent, newsrooms from around the country it once was. They're probably just bitter that the admin came to them with this story themselves instead of letting one of their interns get the scoop from some unnamed source (who definitely couldn't be the same public official being investigated for the original leak).

Some days, our culture seems so depressingly full of bad faith it makes me want to pull an old lady who lived in a shoe (that is, give everybody a sound spanking and send them to bed without supper). Unfortunately, I find I have nothing more coherent to say on the subject right now.
posted by saulgoodman at 6:38 PM on May 13, 2013 [2 favorites]


AP are protecting their source, because they are supposed to protect their source.

That said, they were under no obligation to actually use a source who they knew was violating the law, or to use the material in a way that would potentially endanger a very critical agent in Al Qaeda's midst... one who may have subsequently helped the US effectively target their drones and effectively eliminate the leaders of AQAP.

Basically, the AP can't adequately defend the criminal who leaked the intel, nor can they adequately defend their own actions... and so they engage in what I can only call a hit piece on the government, because they used data mining to almost certainly find the source, describing what was done in a way that verges on hysterics, with lots of heat but no actual light.

AP is covering up their failures here, but the rest of the press will probably help them sell their spin on the matter, rather than addressing the real questions involved that the public should be more aware of.

Should AP have leaked info that could endanger an operative in the field?
Should government datamining be allowed? If so, under what conditions, and with who's approval?
posted by markkraft at 6:41 PM on May 13, 2013 [1 favorite]


markkraft: However, the AP were asked to delay publication for security reasons, and also likely told not to suggest that it had to do with the CIA

Really, they were told to not suggest that it had to do with CIA? Where did you get that from?
Here is the quote I saw:

AP learned of the plot a week before publishing, but “agreed to White House and CIA requests not to publish it immediately” due to national security concerns.

But the Administration published their version the next day:
Since that time, the Administration has tried to claim they never intended to make an official announcement about the “plot.” They did so for a May 9 LAT story.
posted by snaparapans at 6:45 PM on May 13, 2013 [1 favorite]


"they were told to not suggest that it had to do with CIA?"

I should clarify this. The CIA were, as you mentioned, in touch with the paper and got them to delay the story, but apparently didn't get them to fully change the context of the story.

Specifically, in the story you cited, there was no mention or inference of CIA intel agents being inside of AQ, but there apparently was in the AP story, which was potentially problematic. The CIA tried spinning it one way, out of necessity... but AP apparently did not do this, even though they were in touch with the CIA.

Do I know the CIA asked them to do so? No. But it seems likely they would've suggested that they keep their story straight, with CIA agents outside of, not inside of, AQAP.

Of course, the leak itself was potentially dangerous enough at face value, regardless of the degree to which the reports on it had been massaged. It was still a serious criminal act worthy of being investigated.
posted by markkraft at 6:54 PM on May 13, 2013


Brennan was first to leak... the brits got pissed and now the Admin is saving face by going after the leaker:
At about 5:45 p.m. EDT on Monday, May 7, just before the evening newscasts, John Brennan, President Barack Obama's top White House adviser on counter-terrorism, held a small, private teleconference to brief former counter-terrorism advisers who have become frequent commentators on TV news shows.

According to five people familiar with the call, Brennan stressed that the plot was never a threat to the U.S. public or air safety because Washington had "inside control" over it....

A few minutes after Brennan's teleconference, on ABC's World News Tonight, Richard Clarke, former chief of counter-terrorism in the Clinton White House and a participant on the Brennan call, said the underwear bomb plot "never came close because they had insider information, insider control."

A few hours later, Clarke, who is a regular consultant to the network, concluded on ABC's Nightline that there was a Western spy or double-agent in on the plot: "The U.S. government is saying it never came close because they had insider information, insider control, which implies that they had somebody on the inside who wasn't going to let it happen."
posted by snaparapans at 6:58 PM on May 13, 2013 [1 favorite]


I don't think crypto of any kind would have helped: the only information they asked for was lists of "incoming and outgoing calls, and the duration of each call." An encrypted call over the telephone network would leave the same kind of info as an unencrypted one.
Yeah, that's kind of true. But that's not how anyone uses crypto. Typically it's used for email, or at least text chat online. In fact I don't even think it's possible to directly encrypt an end-to-end phone call with a normal smartphone, but you can certainly open up an encrypted channel over the internet, and if you do it over TOR or i2p it would be really difficult to trace.

There's no reason why people would need real-time voice communication to leak this stuff.
To resist stuff like this, what they really need to do is buy disposable prepaid phones with cash, activate them at random payphones, not share them between sources, and dispose of them regularly.
Depends on how lazy the people tracking you are. Using 'droppers' might be fine for low level drug dealers, but if you have the whole NSA looking for your calls it might not be that difficult to figure out if a phone belongs to you. If you bring it into your house, for example, the can correlate the GPS with your address.

Look, if you want secure communication use off the shelf, open-source crypto, and not a home-grown solution. Why use something untested when you can use something that's been worked on and analyzed by the best hackers in the world for years.

I mean, look at Bradley Manning and Wikileaks. They were using TOR and presumably open source crypto tools. The only reason Manning got caught was that he admitted he was the guy to Adrian Lammo, and there is probably no one the national security state wanted to catch more then him.
Who cares? How can a democracy function at all without journalism? Freedoms like those aren't enshrined in laws - they are the basis by which states claim the legitimacy to make laws in the first place.


There's no freedom to leak classified information. It's clearly illegal. If you want to break the law because you think it's in the public interest to do so, and you don't want to go to jail, then use strong crypto.
buy disposable prepaid phones with cash
This crypto fantasy stuff will not protect you.
Using pre-paid phones is not 'crypto fantasy', it's the opposite. Fantasizing that you can communicate securely without using crypto. Crypto worked for Julian Assange and Manning until Manning trusted the wrong person. It didn't work for that drug dealer because he wasn't using it
General Petraus was caught using unencrypted gmails. Bradley Manning didn't delete or encrypt his chat logs with Julian Assange.
Huh, I haddn't heard about the Manning/Assange logs, and looking it up on google that's apparently not the case:
Mark Johnson, a digital forensics contractor for ManTech International who works for the Army’s Computer Crime Investigative Unit, examined an image of Manning’s personal MacBook Pro and said he found 14 to 15 pages of chats in unallocated space on the hard drive that were discussions of unspecified government info between Manning and a person believed to be Assange, which specifically made a reference to re-sending info.

While the chat logs were encrypted, Johnson said that he was able to retrieve the MacBook’s login password from the hard drive and found that the same password “TWink1492!!” was also used as the encryption key.
So, turns out he did encrypt and delete the logs, just didn't do it properly. In particular he re-used passwords and didn't make sure the data was overwritten. Despite that mistake, they didn't find that data until after he was caught.

General Petraus made the same mistake that these journalists did. Assuming that no one was going to try to look at their data. I'm sure he knew how to use crypto he didn't think it was needed.
posted by delmoi at 6:58 PM on May 13, 2013 [5 favorites]


According to five people familiar with the call, Brennan stressed that the plot was never a threat to the U.S. public or air safety because Washington had "inside control" over it....

A few minutes after Brennan's teleconference, on ABC's World News Tonight, Richard Clarke, former chief of counter-terrorism in the Clinton White House and a participant on the Brennan call, said the underwear bomb plot "never came close because they had insider information, insider control."
That's interesting.

I remember at the trial, one of the witnesses for the defense said he saw the bomber being escorted through security by someone, and he thought that the person doing it might have been a government spy.
posted by delmoi at 7:01 PM on May 13, 2013


"Brennan was first to leak.."

Only if "inside control" constitutes a leak, as opposed to a careful statement which includes lots of possible ways to get that control... which seems to be the argument the Obama administration is making. That said, it did seem to trigger some extreme speculation, unfortunately.

Which isn't to say that there wasn't an actual, criminal, unauthorized leak of sensitive information.
posted by markkraft at 7:11 PM on May 13, 2013


"Here's the thing--AP is acting like they know better than the federal judge who granted these subpoenas what their constitutional rights are."

Rights live in assertion, and the AP is asserting that this kind of intelligence gathering is chilling to their ability to conduct journalism.

"I'm also confused whose rights they are protecting-their own, or an alleged right for government personnel to criminally leak classified information on a recent intelligence operation without consequence."

Their own, mine, yours. But I don't think you're confused, I think that's a rhetorical technique to suggest a straw man.

"AP has not been prevented from printing anything, and no reporters could get in trouble for receiving classified information because it is not illegal."

Chilling effect.

The only possible right they are protecting is the right to prevent a criminal act from being prosecuted.

They're protecting their ability to call anyone whom they like to talk about anything they like while in the pursuit of journalism, because that is tied to their fundamental ability to exercise their press freedom. So, no, that's not the only possible right. Of all the possible rights, that's a very bad one to pick.

That's not right. Are we to believe that Americans so had to know about this one operation to make momentus political choices that the interest of the justice system in prosecuting crimes?"

Dude, this is bullshit with flies on it. The government's justification for any act of secrecy can be that the country isn't harmed by that bit of secrecy, since they have all the other information out there already. And honestly, the government has historically been an absolutely terrible arbiter of what should and should not be public. (You can also flip it around to point out that since the information has been leaked, does subpoenaing records now materially help prevent more dangerous leaks? That's a lot less demonstrable than the idea that Americans had to know about this operation.)

Its a question of balance in the law of criminal subpoenas. A federal judge reviewed and decided these subpoenas were lawful and proper under the Constitution. The AP is litigating in the press precisely when the Government cannot litigate in the press for fear of compromising the rights of a criminal defendant in the case.

Too fucking bad for the government being hamstrung by the constitution so they can't compromise a defendant and people are all mad at them for trawling the AP's phone records just because they think a leak might have maybe gotten through there somewhere.
posted by klangklangston at 7:12 PM on May 13, 2013 [7 favorites]


Did the government actually get any useful intelligence out of this?

The fact that the AP is pissed doesn't mean they actually caught the leakers. It's entirely possible the AP was smart about it and the NSA/FBI/whoever didn't actually find what they were looking for. Let's hope none of these reporters were cheating on their wives.

It would certainly be nice if the government wouldn't do this kind of thing. But as to whether or not it's illegal, it doesn't seem like it would be given everything that's been happening recently.

And certainly, I think it would be highly naive to just assume that the government wouldn't take this step. If you're a reporter getting leaked documents, then you really owe it to your sources to take precautions like using crypto. Don't sit around waiting for the government to give you privacy and hoping they do, take it.
posted by delmoi at 7:27 PM on May 13, 2013 [1 favorite]


Something about occupying the lands of 65 million people for a decade just doesn't sound like a winning strategy, no matter how much some of them may like us.

The US of A is in some 74 countries.

Here's the thing--AP is acting like they know better than the federal judge who granted these subpoenas what their constitutional rights are.

Yea, because Federal Judges never make mistakes and that's why the Supreme Court only hears cases about election recounts.

And if it were not for a high-priest caste of law-bringers and law-talking duds of the notary guild no one could read that 'god damn piece of paper' and make their own judgement about what is or should be Constitutional.
posted by rough ashlar at 7:43 PM on May 13, 2013 [1 favorite]


Nothingburger.

Sorry cons, but you've only got three more years for a real Nobama scandal and this ain't it.
posted by bardic at 8:14 PM on May 13, 2013 [1 favorite]


As much as I tend to loathe the Volokh Conspiracy, Orin Kerr has a good post about this over there. I find it fairly convincing.

If we accept that the DoJ should investigate leaks it does follow that the best way to investigate the leak is to figure out which DoJ person was talking to the reporters. And I have a hard time arguing that the DoJ shouldn't investigate leaks. Hell, I like many leaks but they still need to be investigated.
posted by Justinian at 8:45 PM on May 13, 2013 [1 favorite]


According to the DOJ's Attorney's Manual it sure does seem like Holder himself should have signed off on the subpoena. And they should have negotiated with AP first, unless there was a threat of compromising the investigation. (And since they've now notified them, is the investigation over?)

All I'm saying is that I look forward to the FOIA to see that this was all proper, because I love looking at black rectangles.
posted by RobotVoodooPower at 9:17 PM on May 13, 2013 [1 favorite]


They're protecting their ability to call anyone whom they like to talk about anything they like while in the pursuit of journalism, because that is tied to their fundamental ability to exercise their press freedom. So, no, that's not the only possible right. Of all the possible rights, that's a very bad one to pick.

You frame this wrongly. You assign the right to the paper when it is the phone number of the leaker they seek.

AP has every right to listen to every call from a leaker. None of those rights are impeded by that. There is no constitutional violation. AP did not have dominion and control over the records.

And there is no constitutional right to not turn over evidence to a lawful subpoena unless the very act of turning it over constitutes self-incrimination. AP is not the target. They have no right to shield a person from prosecution. Imagine what you call for, the legal right of a corporation to shield people from prosecution by the government. That is fundamentally wrong.
posted by Ironmouth at 10:05 PM on May 13, 2013 [2 favorites]


According to the DOJ's Attorney's Manual it sure does seem like Holder himself should have signed off on the subpoena. And they should have negotiated with AP first, unless there was a threat of compromising the investigation.

AP would have told the leaker to protect their source.
posted by Ironmouth at 10:10 PM on May 13, 2013


The AP wasn't subpenaed, the records would have come from somewhere else (likely a phone company) and it's unclear how they were acquired.

Some states do have journalist shield laws which literally does give some corporations the right to prevent the (state) government from prosecuting "criminals" if the "crime" involved giving information to a journalist. But there's no law like that at the federal level.
posted by delmoi at 1:02 AM on May 14, 2013 [1 favorite]


anti social order: " The money quote FTA: "Perhaps the most important single statement in the ruling refers to the fact that there is no Fourth Amendment violation in use of these techniques because there is no reasonable expectation of privacy in the voluntary use of a voluntarily bought phone--even one that is pay-as-you-go""

Yes, but they have to know you have the phone in order to track it at all:

"Criminals have long believed that the lack of a contract is some magical way of disallowing attribution of a device to a specific person, which is clearly not the case if the device is found upon his person at the time of arrest."

If a journalist used a burner phone to talk to sources, the government would not necessarily know, particularly if they changed phones regularly. I'm not saying this is a good situation, but from a practical POV there are ways to communicate.
posted by krinklyfig at 2:52 AM on May 14, 2013


lupus_yonderboy: "This is what Americans want, this is what they voted for, and if you voted either R or D you really have no business whatsoever complaining."

So, what you want is for the vast majority of voters to shut up about civil liberties?
posted by krinklyfig at 3:00 AM on May 14, 2013


Sorry cons, but you've only got three more years for a real Nobama scandal and this ain't it.

I'm going to try to contain my anger, but: this right here, this attitude right here, is why we have no more privacy rights in this country and why we are engaged in abominable activities around the globe. That right there.

Because whether we're cheering for the Yankees or the Sox - and make no mistake, identifying D or R is about as valid as identifying with a sports team - we will hear NO SLURS whatsoever on OUR BOYS. And so it becomes, "We love Bush! He's our boy! Torture? That's cool. At least he's not Gore." And then it becomes, from the other side, "We love Obama! He's our boy! Torture? That's cool. Imprisoning someone for years without trial? That's cool. At least he's not Bush."

The day that we actually hold our heroes to their feet of clay is the day that we will actually begin moving forward as a nation, but until then, I'm not holding my breath.
posted by corb at 5:01 AM on May 14, 2013 [9 favorites]


The New Yorker: A.P. SCANDAL RAISES SPECTRE OF BIG BROTHER
posted by BobbyVan at 5:11 AM on May 14, 2013


I'm going to try to contain my anger, but: this right here, this attitude right here, is why we have no more privacy rights in this country and why we are engaged in abominable activities around the globe. That right there.

Because whether we're cheering for the Yankees or the Sox - and make no mistake, identifying D or R is about as valid as identifying with a sports team - we will hear NO SLURS whatsoever on OUR BOYS. And so it becomes, "We love Bush! He's our boy! Torture? That's cool. At least he's not Gore." And then it becomes, from the other side, "We love Obama! He's our boy! Torture? That's cool. Imprisoning someone for years without trial? That's cool. At least he's not Bush."

The day that we actually hold our heroes to their feet of clay is the day that we will actually begin moving forward as a nation, but until then, I'm not holding my breath.


The irony of the same people who have been hyperventilating (pun very much intended) over a Democrat implementing almost every single major fiscal Republican policy of the years 1952-1994 and all of the major military policies of 2001-2009 as rampant socialist facism and every non-scandal from the New Black Panthers/ACORN to Solyndra to Benghazi as an impeachable offense now bloviating about how they're not playing team politics is mind-blowing. Looks like maybe crying wolf every single news cycle wasn't the best idea now, doesn't it?

Well, now you'll know how its felt for the liberals (most of whom are just as pissed about this) that have been telling people about this shit for decades, and seeing that the response has been minimal at best. But of course you manage to cherry-pick the one guy in the thread who you can paint everybody on the other side of the aisle with, as if you're the one who's pure of spirit.
posted by zombieflanders at 5:53 AM on May 14, 2013 [1 favorite]


Also: Does no one else think it's supremely fucked up that the AP couldn't be arsed to worry about this shit when, say, it happened to someone else? Or the fact that this has been a problem for well over a decade now for most American citizens? And of course, the crocodile tears from the very same GOP blowhards who claimed that it was a scandal when the DOJ wasn't doing enough to stop leaks will likely go unchallenged, and their Senate Resolution will likely go unmentioned.

Three guesses as to what bias the media will be accused of, and the first two don't count.
posted by zombieflanders at 6:02 AM on May 14, 2013


If Republicans are serious about using this incident to find ways to better protect privacy rights and the practice of journalism, they'll propose legislation designed to do so, and such legislation will get plenty of support from Democrats. If they're not serious, they'll use the incident as an excuse to try to chop heads at DOJ. Time will tell, but my money's on the latter.
posted by burden at 6:03 AM on May 14, 2013 [3 favorites]


Michael Tomasky: Obama Should Ask Holder to Resign
But [Republican] hypocrisy isn’t the main story here. On this one, the administration’s is. For a journalist, I’m not a very good First Amendment absolutist. As the guy who wrote just a week ago that there are no absolute rights (I was writing about the Second Amendment), I realize it would be dodgy of me to carve out an exemption for the First just because I’m a journalist and such an exemption might benefit me. So I recognize that there are times when journalists might have to reveal sources—when a person’s life is at stake, say, and others. And remember, the Supreme Court has never recognized a journalist’s right to protect source confidentiality. But even with all that, it’s pretty clear that Obama has been waging a secret war and then pursuing journalists trying to dig into it with more zeal than even the Bush administration did. And it’s an extra irony that Mr. Process Liberal is presiding over all this.
posted by BobbyVan at 6:29 AM on May 14, 2013 [2 favorites]


It's interesting to note that that article also says "the substantive bills he wants to pass will be at risk because the GOP base will be that much more intolerant of any Republicans voting for anything Obama favors."

If I were to play the political cynic, there's not much of a downside for Obama here. The public doesn't seem to give a shit about scandals (see "crying wolf" above) yet, they trust the administration more than the GOP on scandals, and the major legislation that is coming up is on immigration and GLBT issues, both major political losers for the GOP if they oppose it. Get the base and the crazy wing in Congress all torqued up so that they'll start saying very stupid things about Brownish-Americans and TEH GAYZ, watch the bills go down in defeat, and then reap the rewards with a fired-up Latino and pro-equality base that minimizes losses in 2014 and makes a win for his successor in 2016 much easier.
posted by zombieflanders at 6:51 AM on May 14, 2013 [1 favorite]


The irony of the same people who have been hyperventilating (pun very much intended) over a Democrat implementing almost every single major fiscal Republican policy of the years 1952-1994 and all of the major military policies of 2001-2009 as rampant socialist facism and every non-scandal from the New Black Panthers/ACORN to Solyndra to Benghazi as an impeachable offense now bloviating about how they're not playing team politics is mind-blowing.

Look, I get that you disagree with a lot of Republicans on policy. I really do. But to accuse them of being disingenuous because they disagree with Republicans of the past is not a fair tactic. It would be just as valid to accuse Democrats of the present of being disingenuous because they no longer agree with segregation - even though it was backed by Democrats for so long! Everyone has a right to choose their political beliefs to match the parties of the current time, not the parties as they would like them to be.

And it is possible, to at the same time, accuse someone of being more towards socialist than you would like - which really only means that the individual in question is /more/ likely to agree with socialist principles than whatever your principles are - without doing it just for the partisan politics. You can think they are wrong - and am acquainted with lots of socialists who get irritated because they only wish Obama was a socialist for reals - without assuming they are not being genuine.

I know a lot of people who are very genuine about disliking Obama for a lot of his policies. Some of them also dislike Republicans for their policies. I submit that you don't see this because of selection bias - how many Republicans do you spend time with? How many of them are in your feeds? How often do you really see the other side talking?
posted by corb at 7:17 AM on May 14, 2013 [2 favorites]


Look, I get that you disagree with a lot of Republicans on policy. I really do. But to accuse them of being disingenuous because they disagree with Republicans of the past is not a fair tactic. It would be just as valid to accuse Democrats of the present of being disingenuous because they no longer agree with segregation - even though it was backed by Democrats for so long! Everyone has a right to choose their political beliefs to match the parties of the current time, not the parties as they would like them to be.

Yeah, no. I'm not talking about Republicans disagreeing with something that happened 65 years ago, I'm talking about abrupt about-faces just because Obama or other Democrats supported it. Nobody seemed to care that Bush's IRS was involved in far worse activities than the current scandal, ones that crossed several Cabinet levels. The GOP didn't seem to be upset about getting involved in conflicts until 2009. Obamacare (including the individual mandate) was supported by people like McCain until 2007. Boehner claimed he got "99% of what he wanted" in the 2011 debt ceiling fight. Chained CPI was a favorite of the GOP throughout 2012. VAWA got widespread bipartisan unanimous support up through 2005. The list goes on and on, and is ironclad proof that there are a great many things that the GOP supports until the words come out of Obama's (or Reid's, or Pelosi's) mouth.

So, no, I'm not being disingenuous, the GOP is. This is nothing like segregation, and to suggest so is pretty disingenuous yourself.

And it is possible, to at the same time, accuse someone of being more towards socialist than you would like - which really only means that the individual in question is /more/ likely to agree with socialist principles than whatever your principles are - without doing it just for the partisan politics.

Then why do I not see people glorifying Reagan, both officially and not, on a level not seen since George Washington for doing essentially the exact same things Obama is being vilified for?

I know a lot of people who are very genuine about disliking Obama for a lot of his policies. Some of them also dislike Republicans for their policies. I submit that you don't see this because of selection bias

This reads as if you do not know Metafilter's userbase at all.
posted by zombieflanders at 7:41 AM on May 14, 2013 [2 favorites]


krinklyfig: So, what you want is for the vast majority of voters to shut up about civil liberties?

Can't speak for ly, but I'd say the vast majority of voters have spoken loud and clear on civil liberties: They don't want 'em.
posted by PMdixon at 7:42 AM on May 14, 2013 [1 favorite]


Authorities have had the power for a very long time to subpoena phone records. So if this really is a very serious civil liberties issue, it's a very old one that's spanned many, many administrations, isn't it?
posted by saulgoodman at 7:49 AM on May 14, 2013


Get the base and the crazy wing in Congress all torqued up so that they'll start saying very stupid things about Brownish-Americans and TEH GAYZ, watch the bills go down in defeat, and then reap the rewards with a fired-up Latino and pro-equality base that minimizes losses in 2014 and makes a win for his successor in 2016 much easier.

Good gameplan for victory, I just hope we don't screw it up by accidentally passing the bills.
posted by Drinky Die at 7:50 AM on May 14, 2013 [2 favorites]


The list goes on and on, and is ironclad proof that there are a great many things that the GOP supports until the words come out of Obama's (or Reid's, or Pelosi's) mouth.

The thing is, you'll get no argument here that the GOP Party (tm) does a lot of shit like that - and in fact, it's a Known Quantity. A lot of the people I know, for example, most fervent on gun rights, actually said Obama would be better for them than Romney would - because if Romney, who also supports gun control, were in office, the pro-gun Republicans would roll over and not make a peep, whereas if Obama was, they'd oppose it full throttle. It's the same thing with Dems - Guantanamo, anybody?

But what I'm saying is that that shit is bad on the whole, and also not necessarily indicative of Republicans, who are often more than simply their party. And when you act like it is - I think you lower the character of discourse and make it more about "gotcha" than about the actual subject. Because there are in fact Republicans who have opposed socialized healthcare since the forties. There are in fact Republicans who have opposed the war since the beginning. (Ron Paul comes to mind, even though he's only a Republican because the Libertarian party hasn't won any elections.) There are ideologically consistent wings of the party - but because they're all cobbled into this Frankenstein beast, I don't think it's fair to judge the whole by the parts.
posted by corb at 7:57 AM on May 14, 2013 [2 favorites]


Authorities have had the power for a very long time to subpoena phone records. So if this really is a very serious civil liberties issue, it's a very old one that's spanned many, many administrations, isn't it?

There are lots of things the government has the technical authority to do that a liberal society ought not tolerate, except in exigent/extreme circumstances.

I think the real question is why is the Obama Administration's attitude towards the free press, in the words of the former chief counsel for the New York Times, "Antediluvian, conservative, backwards. Worse than Nixon"?
posted by BobbyVan at 8:01 AM on May 14, 2013 [1 favorite]


The people and wings you mention are minorities, often very small ones. And the overlap between the hyperventilators and the hypocrites is significant.
posted by zombieflanders at 8:02 AM on May 14, 2013


It would certainly be nice if the government wouldn't do this kind of thing.

...or if terrorists wouldn't do that kind of thing.

Which reminds me of "Gentlemen do not read each other's mail." A fine and noble sentiment, unless, of course, you are dealing with people who aren't gentlemen, in which case you're likely to find yourself unprepared and rebuilding your intelligence gathering from scratch, when this kind of thing happens.

It would be nice if they didn't have to infiltrate Al Qaeda or kill Americans, either... but given that the guy they killed was in the process of recruiting for and equipping a terrorist training camp, well, that's not so realistic.

Intelligence saves lives and wins wars, sometimes even before the war is fought... but the dark side to it is that it is potentially invasive, and that state secrets need to be kept.

It certainly would be nice if the government wouldn't do this kind of thing, but they pretty much have to in order to save lives and win wars. Intelligence gathering -- and protection of intel -- has become an existential necessity of national policy.
posted by markkraft at 9:33 AM on May 14, 2013


There are lots of things the government has the technical authority to do that a liberal society ought not tolerate, except in exigent/extreme circumstances.

OK, thought experiment. So a news organization wants to run a meaty classified fact it got from a felony disclosure of classified info--that a CIA agent has penetrated a terrorist cell and can blunt its activities. That fact being disclosed would stop us from using the mole to help stop terrorist attacks and bring terrorists to justice.

Would that be a extreme circumstance?
posted by Ironmouth at 10:40 AM on May 14, 2013


For those speculating above about whether Holder would have personally authorized the subpoenas, apparently, no, he did not.

It's being reported now that Holder recused himself.

But then, my source is CNN, so it'll be a few days before we know if that's accurate.
posted by saulgoodman at 10:51 AM on May 14, 2013 [1 favorite]


OK, thought experiment. So a news organization wants to run a meaty classified fact it got from a felony disclosure of classified info--that a CIA agent has penetrated a terrorist cell and can blunt its activities. That fact being disclosed would stop us from using the mole to help stop terrorist attacks and bring terrorists to justice.

I think a dragnet that effectively ensnares an entire news organization is not the way a government that claims to respect a free press should ferret out a leaker. In any case, the actual situation here seems a bit less dramatic. Per the original AP story:
The AP learned about the thwarted plot last week but agreed to White House and CIA requests not to publish it immediately because the sensitive intelligence operation was still under way. Once officials said those concerns were allayed, the AP decided to disclose the plot Monday despite requests from the Obama administration to wait for an official announcement Tuesday.
posted by BobbyVan at 11:09 AM on May 14, 2013 [1 favorite]


Sorry cons, but you've only got three more years for a real Nobama scandal and this ain't it.

Exactly. When Bush and Cheney were doing this shit, conservatives not only did not protest, they loved it.

The only scandal here is that right-wingers think we're so gullible that we can't see past their dishonest, time-wasting bullshit games.
posted by Blazecock Pileon at 11:29 AM on May 14, 2013 [1 favorite]


This country has needed, and will always continue to need a good DE-BUSHIFACATION.
posted by QueerAngel28 at 11:42 AM on May 14, 2013 [2 favorites]


Letter from Deputy Attorney General James Cole to AP President and CEO Gary Pruitt.
posted by BobbyVan at 11:48 AM on May 14, 2013 [3 favorites]


If I were to play the political cynic, there's not much of a downside for Obama here. The public doesn't seem to give a shit about scandals (see "crying wolf" above) yet, [...] a win for his successor in 2016 much easier.
would you say that identity politics are being used as a distraction from overall erosion of civil liberties and other disastrous shit
posted by This, of course, alludes to you at 1:18 PM on May 14, 2013 [1 favorite]


On reflection the AP was so terrible at covering the PATRIOT Act and the NSA warrantless wiretapping scandals, it is surprising they noticed this at all.
posted by humanfont at 3:22 PM on May 14, 2013


Sorry cons, but you've only got three more years for a real Nobama scandal and this ain't it.
There was a poll recently where the majority of republicans thought Bengazi was the worst scandal in history. Worse then Iran Contra, Watergate, and the Teapot Dome. A lot of them didn't even know what country it was in (IIRC 39%)

The problem is that conservatives and liberals live in two separate worlds. Bengazi is a conservative thing, and they spent so much time saying that something was wrong without being able to articulate it that now when non-conservatives hear about it they just roll their eyes.

And of course in the past they call all kinds of inane things "scandals" that they have basically no credibility on anything

So ultimately, what is a "scandal"? The term doesn't even have much meaning anymore.

I think this is going to piss off a lot of people in the main-stream media, and they may cover it as a "real" scandal. I saw Piers Morgan complaining about it the other day, hardly a right-winger.

Will it resonate with the American people? I kind of doubt it. After all if they went after wikileaks, and everyone thought that was cool, why would they get upset about the AP doing the same thing? The media is reaping what they sowed by bashing wikileaks.
posted by delmoi at 5:58 PM on May 14, 2013


Charles Pierce: Eric Holder Must Go
posted by homunculus at 6:38 PM on May 14, 2013


"we will hear NO SLURS whatsoever on OUR BOYS"

Oh please, get over yourself corb. The Republican puke-funnel has been running non-stop since a black guy was elected. Your supposedly non-partisan pearl-clutching is precious at best.
posted by bardic at 6:38 PM on May 14, 2013 [3 favorites]


The Obama administration was going to make an official announcement about the Underwear bomber plot the next day.. emptywheel has the details:

More from emptywheel: AP Response to DOJ Reveals They COULDN’T Have Had Most Damaging Info Brennan Exposed

I Wonder What Fahd Al-Quso Thought of the AP’s UndieBomb 2.0 Story?
posted by homunculus at 6:51 PM on May 14, 2013


The Law Behind the A.P. Phone-Record Scandal
posted by homunculus at 7:15 PM on May 14, 2013


DOJ's History Of Ignoring The Rules When Getting Phone Records Of Journalists
posted by homunculus at 7:28 PM on May 14, 2013


Is Obama Worse For Press Freedom Than Nixon? James Goodale defended the New York Times during the Pentagon Papers. But Nixon had nothing on Obama, writes the First Amendment lawyer—and that’s bad news for freedom of the press.
posted by homunculus at 8:15 PM on May 14, 2013


Gee. Everything was so great in the heady days of Poland, Norway, Belgium and France[...]

Very subtle, but Godwin still says shame on you...
posted by MoTLD at 8:26 PM on May 14, 2013


Hear Ye, Future Deep Throats: This Is How to Leak to the Press
posted by homunculus at 11:27 PM on May 14, 2013 [4 favorites]


Great link, homunculus! I can't think of much they left out (well, nothing simple to do, anyway, which unfortunately excludes Tor) and nothing there seems likely to get someone caught, if they really pay attention and don't, say, forget to pull the battery or some such.

And the next-to-last para has some good examples of folks who got in trouble for whistleblowing even when doing so was technically legal, for those who're trying to justify this with the illegal angle.
posted by MoTLD at 11:40 PM on May 14, 2013


Oh please, get over yourself corb. The Republican puke-funnel has been running non-stop since a black guy was elected. Your supposedly non-partisan pearl-clutching is precious at best.
Worrying about the administration wiretapping reporters is pearl clutching now? Why on earth do you think anyone who cares about civil liberties or the free press would want to do anything to support anything you think is important?

This is what I don't get a about a lot of Obama supporters, they imply that some how people are idiots for criticizing Obama because republicans are bad and we're all on the same side and have to focus on defeating them, but if you're someone who thinks, for example, it's not a deal if the president wiretaps journalists then you're also bad it means we're not on the same side. It means you're our opponents, and if you think we're not helping your side it's not because we're not thinking clearly, it's because that is our goal.
posted by delmoi at 12:13 AM on May 15, 2013 [2 favorites]


Worrying about the administration wiretapping reporters is pearl clutching now? Why on earth do you think anyone who cares about civil liberties or the free press would want to do anything to support anything you think is important?

The thing is, some of us were criticized for pointing out these problems, and now that Republicans — right-wingers who supported taking away our rights for years, for decades — are suddenly complaining, this "scandal" of the week now demands everyone's attention. If this isn't pearl clutching, what is?
posted by Blazecock Pileon at 12:48 AM on May 15, 2013 [3 favorites]


Rachel Maddow: Freedom, security at odds again in DOJ seizure of AP records
posted by homunculus at 1:20 AM on May 15, 2013


This May 18, 2012 Reuters article, a few weeks after the original AP story, is a good summary of what went down, from just after it happened. It's being linked by a lot of folks summarizing the episode now, but is worth reading itself.

This part was new to me:

According to National Security Council spokesman Tommy Vietor, due to its sensitivity, the AP initially agreed to a White House request to delay publication of the story for several days. But according to three government officials, a final deal on timing of publication fell apart over the AP's insistence that no U.S. official would respond to the story for one clear hour after its release.

When the administration rejected that demand as "untenable," two officials said, the AP said it was going public with the story. At that point, Brennan was immediately called out of a meeting to take charge of damage control...The AP denies any quid pro quo was requested by them or rejected by the White House. "At no point did AP offer or propose a deal with regard to this story," said AP spokesman Paul Colford.

posted by mediareport at 3:53 AM on May 15, 2013


now that Republicans — right-wingers who supported taking away our rights for years, for decades — are suddenly complaining, this "scandal" of the week now demands everyone's attention.

It's more that every major media outlet in the country is complaining.
posted by Drinky Die at 5:36 AM on May 15, 2013 [1 favorite]


Juan Cole: Department of Justice Spying on AP Reporters’ Telephone Contacts Threatens Democracy
posted by BobbyVan at 7:27 AM on May 15, 2013


Blazecock Pileon: "If this isn't pearl clutching, what is?"

Precisely. A significant portion of the online leftosophere has been bitching for years about Obama's blind spots w.r.t. civil liberties in general, and his administration's targeting of leakers specifically. The right wing, on the other hand, has been mostly preoccupied with Obama's birth certificate, "death panels", paranoia about gun confiscation, force-feeding broccoli to children, indoctrinating students with socialist teachings in elementary schools, "Agenda 21" nonsense, and literally dozens of other distractions designed to delegitimize the President.

Have there been right-leaning commentators talking about the administration's war on leaks? Sure, there have been a few, but it's been way, way down the list, barely audible above the howls of outrage over whatever the latest manufactured outrage is. Scandal fatigue is a real thing, and at some point when you're implying that the foreign-born Muslim Marxist is trying to kill old people, collect everyone's guns, and subject America to a One World government run by the United Nations, you've forfeited your right to be at the front of the line with a pitchfork demanding answers as to why the DOJ is using subpoena power to investigate leaks of classified information.

I fully expect people to take advantage of vulnerable political opponents, but it's pathetic to see people who've been raising hell about imaginary threats to Democracy suddenly hop on board and try to paint themselves as principled opponents of executive overreach when their batting average on scandal-mongering finally creeps into the single digits.
posted by tonycpsu at 7:55 AM on May 15, 2013 [2 favorites]


Have there been right-leaning commentators talking about the administration's war on leaks? Sure, there have been a few, but it's been way, way down the list, barely audible above the howls of outrage over whatever the latest manufactured outrage is.

So here's the problem, and I think, certainly my frustration with that view: it really comes from an entirely biased perspective.

You could easily rewrite it from an equally biased perspective: "Have there been left-leaning commentators talking about Obama's war on civil liberties? Sure, a few, but way, way down the list behind LGBT, race issues, gun control, capitalism, the 1%, inequality, barely audible above those howls of outrage."

And you would be wrong to do so.

Look, I get it, I really do, that right-leaning commentators often care about things that you don't, but it is reductionist and dismissive to say that because they care about other things, they cannot care about civil liberties. And worse, than that, it's wrong.

Conservatives, and yes, particularly the libertarian wing, care primarily about freedom from, rather than freedom to. So they care about freedom from doctors getting to decide how much treatment is too much, freedom from the government confiscating guns (which is, ultimately, a real goal), freedom from their children being interfered with and yes, indoctrinated, and yes, freedom from surveillance.

These are all things that they legitimately and genuinely care about, and not just to "get" Obama. Do I wish that the right had been, overall, more consistent on surveillance post 9/11 under Bush? Yes, I think that they tended to follow the "it's okay as long as I am not being surveilled, and I'm not a terrorist" line and I think it was incredibly short sighted.

But you playing this "Gotcha" game to try to diminish your political opponents rather than engaging with their arguments is not well done and not helpful.

Conservatives, just like liberals, do not often get widespread media coverage of their pet issues. It is what it is. And so when the media focuses on something, to outside observers, it seems like "This is the thing that conservatives/liberals are focusing on." But a better way to read it would be, "This is the thing that the media is focusing on."
posted by corb at 8:06 AM on May 15, 2013 [1 favorite]


tonycpsu: "at some point . . . you've forfeited your right to be at the front of the line with a pitchfork demanding answers"

I'm sorely tempted to cut-and-paste the "so now you give the devil the benefit of the law!" bit from A Man For All Seasons. But we all know it by heart.

The suggestion that a person's political hypocrisy or opportunism ought to influence how the rest of us should respond to that person's victimization by the abuse of government power is tyrannical in its implications.
posted by BobbyVan at 8:12 AM on May 15, 2013 [2 favorites]


corb: "You could easily rewrite it from an equally biased perspective: "Have there been left-leaning commentators talking about Obama's war on civil liberties? Sure, a few, but way, way down the list behind LGBT, race issues, gun control, capitalism, the 1%, inequality, barely audible above those howls of outrage."

And you would be wrong to do so.
"

Sadly, no. You're trying to hide the ball by broadening the discussion to all online commentary when what we're talking about here is criticism of the President from the left and right with respect to scandalous / abusive / illegal activity. Of course many online Democrats talk about the other issues you mention, but for the most part, they agree with what the President has done, which is a big reason why he still occupies the oval office.

Even on issues where the activist left "firebaggers" disagree with the President, very few have talked about the possibility of illegal activity, with the one important exception being on issues of civil liberties. Forgive me if I don't remember a lot of conservative commentators lining up to support Bradley Manning and Julian Assange.
posted by tonycpsu at 8:23 AM on May 15, 2013 [2 favorites]


Speaking of Wikileaks, it's sad that lost amongst all the political, organizational, and personal scandals the organization became mired in nobody in the press apparently noticed that one of the primary goals of the organization, to create a technically secure anonymous dropbox where people could safely whistleblow, was kind of a really important goal that journalism in the 21st century really needs to get around to perfecting.
posted by Drinky Die at 8:40 AM on May 15, 2013 [1 favorite]


BobbyVan: " The suggestion that a person's political hypocrisy or opportunism ought to influence how the rest of us should respond to that person's victimization by the abuse of government power is tyrannical in its implications."

You can respond however you like, and I can call hypocrites hypocrites. Dude, where's the tyranny?

I'm not suggesting any legal prohibition on being a hypocrite, but when someone's attention to the issue of press freedom varies depending on who occupies the Oval Office, it's relevant to the conversation about how scandalous the behavior really is. We know the DOJ had the legal right to pursue a leak of classified material. What is in question is whether the DOJ's failure to talk to the reporters prior to issuing a broad two month subpoena for phone records constitutes an abuse of executive power, or whether they had reason to believe doing so could jeopardize the investigation.

These details will come out, and I don't doubt heads will roll if it turns out the issuance of the subpoena was politically-motivated. But when the left has been taking Obama to task for the administration's secrecy and war on leaks, it's a bit rich to have a bunch of people seen most recently foaming at the mouth about the fact that Sunday talk show talking points were edited by the intelligence community suddenly hopping on board as if they've always opposed executive power.
posted by tonycpsu at 8:41 AM on May 15, 2013 [2 favorites]


to create a technically secure anonymous dropbox where people could safely whistleblow, was kind of a really important goal that journalism in the 21st century really needs to get around to perfecting.

Oh, hey.
posted by Drinky Die at 8:59 AM on May 15, 2013 [1 favorite]


when someone's attention to the issue of press freedom varies depending on who occupies the Oval Office, it's relevant to the conversation about how scandalous the behavior really is.

How so? Isn't the "scandalousness" of one's behavior objectively independent from another person's "attention" to a particular issue?
posted by BobbyVan at 9:02 AM on May 15, 2013 [2 favorites]


Forgive me if I don't remember a lot of conservative commentators lining up to support Bradley Manning and Julian Assange.

I will forgive you - but I think it's more a function of your access than its existence.
Thus, Brad Manning is made out to be a different kind of criminal, one far more deadly to the state than international spies, profiteers, murderers and cheats. He angered the state when he exposed a few of its many crimes... Inseparable from Washington’s call for Brad Manning’s continued torture and deprivation of rights is Washington’s public political cheerleading for the detention and death of Australian Julian Assange.
Or Presidential Candidate Ron Paul, if you want an actual politician, who noted that
Bradley Manning deserved the Nobel Peace Prize more than Obama did.
posted by corb at 9:12 AM on May 15, 2013 [2 favorites]


IRS Sent Same Letter to Democrats That Fed Tea Party Row
The Internal Revenue Service, under pressure after admitting it targeted anti-tax Tea Party groups for scrutiny in recent years, also had its eye on at least three Democratic-leaning organizations seeking nonprofit status.

One of those groups, Emerge America, saw its tax-exempt status denied, forcing it to disclose its donors and pay some taxes. None of the Republican groups have said their applications were rejected.

Progress Texas, another of the organizations, faced the same lines of questioning as the Tea Party groups from the same IRS office that issued letters to the Republican-friendly applicants. A third group, Clean Elections Texas, which supports public funding of campaigns, also received IRS inquiries.
[...]
[F]our of Emerge America’s affiliates and its main headquarters already had been approved as nonprofits.

The tax agency on Oct. 21, 2011, revoked those approvals. The national organization and its state affiliates are now incorporated under Section 527 of the tax code.

“We didn’t even get the opportunity to answer questions,” said Karen Middleton, president of Emerge America. “We would have welcomed the opportunity to respond to a questionnaire.”

An Austin, Texas-based group, Progress Texas, received a letter from the IRS in February 2013 when it sought nonprofit status. The letter came from the agency’s Laguna Niguel, California, office, which sent essentially the same queries to Republican-leaning groups.

As with the Tea Party groups, the IRS sought copies of promotional materials, backgrounds of officers, meeting minutes and specifics about activities, such as get-out-the-vote drives, that the organization said it would conduct.
posted by zombieflanders at 9:22 AM on May 15, 2013 [1 favorite]


I will forgive you - but I think it's more a function of your access than its existence.

Really, two whole accounts, one from Ron Paul (who got barely 10% of the conservative vote) and one from Ron Paul's former right-hand man and the guy who approved racist literature in Paul's newsletters? That doesn't count as "a lot" of commentators or support from conservatives.
posted by zombieflanders at 9:27 AM on May 15, 2013 [3 favorites]


Can somebody explain the shock and outrage to me, especially in light of the revelation of Room 641A, an activity that has been ongoing for ten years? Is it because AP was specifically targeted?

Call me cynical. but it seems to me we've already established what we are, we're just haggling on price. All this outrage over the latest scandals (Benghazi, IRS) seems highly partisan, except for this one, where reporters are outraged because they still think they're some noble and privileged class.
posted by entropicamericana at 9:55 AM on May 15, 2013 [3 favorites]


Isn't the "scandalousness" of one's behavior objectively independent from another person's "attention" to a particular issue?

No, it isn't. Alarmism is so old and well understood that there's even a 2500-year old fable about it.
posted by Blazecock Pileon at 10:05 AM on May 15, 2013


Really, two whole accounts, one from Ron Paul (who got barely 10% of the conservative vote)

How much of the vote did the pro-Assange/Manning liberal candidate get?
posted by Drinky Die at 10:15 AM on May 15, 2013 [1 favorite]


Obama to GOP: Put Up or Shut Up on DOJ Investigation
Benghazi is still the nothingburger it's always been, and everyone knows it; the DOJ episode is a policy debate, not a scandal; and it's vanishingly unlikely that Obama had even the most tenuous connection to the IRS targeting of tea party groups, the only genuine scandal in the bunch.

Still, this is an interesting tidbit of news from Savage, both on substantive and political grounds. Substantively, Obama is making the point that legislation has been introduced before, and can be introduced again, that would prevent DOJ from targeting the phone records of media organizations. In 2010, such legislation was introduced, and died when it was filibustered by Republicans in the Senate. More generally, media organizations have been lobbying for a federal shield law for decades, and Congress has been resolutely unwilling to pass one, even though nearly every state has a shield law of one sort or another.

Politically, Obama is basically daring Republicans to put their money where their mouths are. You want to make the DOJ leak investigation into an issue of executive overreach? Fine. Then rein it in. Pass a law making it clear what DOJ can and can't do in leak investigations.

This is a win-win for me. If Republicans take Obama up on his offer, then we get a law I approve of. If they don't, then they need to shut up. What's not to like?
posted by zombieflanders at 10:15 AM on May 15, 2013 [4 favorites]


I'm sorely tempted to cut-and-paste the "so now you give the devil the benefit of the law!" bit from A Man For All Seasons. But we all know it by heart.

It's always worth hearing again. Here you go.
posted by homunculus at 10:21 AM on May 15, 2013 [2 favorites]


BobbyVan: " How so? Isn't the "scandalousness" of one's behavior objectively independent from another person's "attention" to a particular issue?"

What Blazecock said. Scandal is in the eye of the beholder. Newt Gingrich, Ken Starr, and the Beltway press spent years chasing Clinton's pecker all over town because it was "scandalous."

The administration's record on prosecuting classified leaks has been out there for anyone to see, including during the heart of the election season. If there was any appreciable amount of anger on the right for executive overreach, it seems like that would have been a good time to raise those issues. The fact that a perennial also-ran pseudo-Republican talked about it is the exception that proves the rule -- you saw in the debates what the mainstream GOP thinks of Ron Paul and the Libertarian wing of the GOP.
posted by tonycpsu at 10:23 AM on May 15, 2013 [1 favorite]


Drinky Die: " How much of the vote did the pro-Assange/Manning liberal candidate get?"

Right, because comparing a field cleared for the incumbent to the rugby scrum that included about a dozen GOP candidates is totally apples-to-apples.
posted by tonycpsu at 10:24 AM on May 15, 2013 [2 favorites]


Agreed, Paul would have gotten a lot higher than 10% with less of a scrum to deal with.
posted by Drinky Die at 10:29 AM on May 15, 2013 [1 favorite]


Drinky Die: "Agreed, Paul would have gotten a lot higher than 10% with less of a scrum to deal with."

You've got to be kidding, dude.
posted by tonycpsu at 10:32 AM on May 15, 2013


Right, because comparing a field cleared for the incumbent to the rugby scrum that included about a dozen GOP candidates is totally apples-to-apples.

And let's not forget that the original question was about commentators. What we got in response was Ron Paul and one of his minions. Nobody from Fox News, or the Limbaugh/Savage/etc talk radio sphere, or the Wall Street Journal, or the Washington Times, or National Review, or Commentary, or any of a number of other conservative commentators.
posted by zombieflanders at 10:32 AM on May 15, 2013 [2 favorites]


zombieflanders: " And let's not forget that the original question was about commentators. What we got in response was Ron Paul and one of his minions. Nobody from Fox News, or the Limbaugh/Savage/etc talk radio sphere, or the Wall Street Journal, or the Washington Times, or National Review, or Commentary, or any of a number of other conservative commentators."

B-b-b-but Reason magazine! And The American Conservative! And... and that guy at a Tea Party rally that you didn't see because he was surrounded buy hundreds of people holding "NO DEATH PANELS" signs!
posted by tonycpsu at 10:34 AM on May 15, 2013 [1 favorite]


Could you two just decide where you are going to put the goalposts and get back to us when you are done?
posted by Drinky Die at 10:36 AM on May 15, 2013


Drinky Die: "Could you two just decide where you are going to put the goalposts and get back to us when you are done?"

My original question:

"Forgive me if I don't remember a lot of conservative commentators"

The response: Ron Paul and his right-hand man.

And I'm the one moving the goalposts???
posted by tonycpsu at 10:38 AM on May 15, 2013 [2 favorites]


The lesson here (here = the possible revival of the Free Flow of Information Act) is that the right's Fautrage Power can also be used in the service of good.
posted by notyou at 10:43 AM on May 15, 2013 [3 favorites]


And let's not forget that the original question was about commentators. What we got in response was Ron Paul and one of his minions. Nobody from Fox News, or the Limbaugh/Savage/etc talk radio sphere, or the Wall Street Journal, or the Washington Times, or National Review, or Commentary, or any of a number of other conservative commentators.

Alright, how about Andrew Napolitano? Or John Whitehead, president of the Rutherford institute? Or a host of others? You have created your own standards for who you will listen to, but the plain fact is that yes, conservative commenters do in fact not approve of how Manning is being treated - whether or not they agree with his action. And cherry picking is not addressing that fact.
posted by corb at 10:48 AM on May 15, 2013


corb: "You have created your own standards for who you will listen to.
...
And cherry picking is not addressing that fact.
"

It's your own cherry-picking of individuals with near-zero market share in the GOP media landscape that proves my point. I could name a dozen prominent liberal commentators with widely-read blogs and highly-rated TV and radio shows who've been all over the White House's handling of classified leak investigators since it began, and all you've got is third-string pundits and anonymous think tankers.
posted by tonycpsu at 11:03 AM on May 15, 2013 [2 favorites]


the right's Fautrage Power can also be used in the service of good

A broken clock is a horrible way to tell time.
posted by Blazecock Pileon at 11:06 AM on May 15, 2013


There was a poll recently where the majority of republicans thought Bengazi was the worst scandal in history. Worse then Iran Contra, Watergate, and the Teapot Dome. A lot of them didn't even know what country it was in (IIRC 39%)

Greatest. Poll. Ever.
posted by homunculus at 11:07 AM on May 15, 2013 [2 favorites]


Blazecock Pileon: " A broken clock is a horrible way to tell time."

Yeah, but at this point, it's definitely worth using the sudden interest in protecting reporters to revive the reporter shield law. I don't think Obama hiding behind technical objections to it like he did a few years back would fly in this environment, and since the monkeys are going to howl no matter what, we might as well use their energy for something productive.

It's not like Obama was going to be able to accomplish anything substantial in his second term anyway with the GOP vandals blocking everything.
posted by tonycpsu at 11:09 AM on May 15, 2013 [1 favorite]


And I'm the one moving the goalposts???

Yes. Earlier the goalposts for the left being serious about this was: "A significant portion of the online leftosophere has been bitching for years about Obama's blind spots w.r.t. civil liberties in general, and his administration's targeting of leakers specifically"

But when we apply it to Republicans suddenly you need to prove yourself in Presidential elections and it has to be on cable news and the top papers and radio shows as arbitrarily defined on you to exclude every example. One comment it's "Not on Fox News!" and then when a very prominent Foxer like Napolitano is mentioned it's "But he's third rate!" Whatever, dude.

Here is what this issue looks like. A large majority of both Democrats and Republicans do not support Wikileaks. Some people on the fringe of the left and right do support Wikileaks, but mostly they all care about other issues more.
posted by Drinky Die at 11:11 AM on May 15, 2013 [2 favorites]


Alright, how about Andrew Napolitano?

The byline of that article is March 2011. Where was his outrage for the decade prior?

Or John Whitehead, president of the Rutherford institute?

That's from two whole months ago. Same question.

Or a host of others?

Like who? We're talking about conservative mindshare here, and you've picked people that I would be very few conservatives are even aware of, let alone read or agree with.

You have created your own standards for who you will listen to, but the plain fact is that yes, conservative commenters do in fact not approve of how Manning is being treated - whether or not they agree with his action. And cherry picking is not addressing that fact.

You've come with a grand total of 4 people, only 2 of whom have any stance pre-Obama, and you accuse us of cherry-picking and creating the standards? How about you show us the people that were grabbing large swaths and/or majorities of conservative opinion? What about Sean Hannity, James Podhoretz, Ross Douthat, John Derbyshire, Erick Erickson, Jonah Goldberg, Charles Krauthammer, Rich Lowry, Glenn Reynolds, Michelle Malkin, Jim Hoft, Rush Limbaugh, or any of a number of other conservatives that have huge followings and/or subscribers?

But when we apply it to Republicans suddenly you need to prove yourself in Presidential elections and it has to be on cable news and the top papers and radio shows as arbitrarily defined on you to exclude every example.

Because these were the guys getting a lot of support from conservatives, and yes, libertarians.
posted by zombieflanders at 11:19 AM on May 15, 2013 [2 favorites]


Drinky Die: "Yes. Earlier the goalposts for the left being serious about this was: "A significant portion of the online leftosophere has been bitching for years about Obama's blind spots w.r.t. civil liberties in general, and his administration's targeting of leakers specifically""

Oh hey, look, it's the part of my original comment that you didn't quote:
Have there been right-leaning commentators talking about the administration's war on leaks? Sure, there have been a few, but it's been way, way down the list, barely audible above the howls of outrage over whatever the latest manufactured outrage is.
Again, we're not talking about what issues rank most to least important in opinion polls, we're talking about what issues the respective bases have been going after the President on, and aside from his hands-off approach to Wall Street malfeasance, I can't think of another issue prominent liberals have gone after him for as much as this one. The right, aside from a few idiosyncratic people with very little influence in conservative thought, arrived at the party as soon as there was a sign that it could imperil Obama's presidency.
posted by tonycpsu at 11:22 AM on May 15, 2013


Charles Pierce:
I remember vividly how outraged Republicans were, and the "bipartisan" demand for answers, and the many columns in the courtier press about how C-Plus Augustus had "lost" the important people in Washington because of his arrogant, petulant mien. Wait. No, I don't.
posted by zombieflanders at 11:24 AM on May 15, 2013 [2 favorites]


Isn't the "scandalousness" of one's behavior objectively independent from another person's "attention" to a particular issue?

No, it isn't. Alarmism is so old and well understood that there's even a 2500-year old fable about it.


Y'know, does it even matter who has or has not cried wolf, or ignored past wolves, to the sheep who's currently facing a wolf?
posted by MoTLD at 11:32 AM on May 15, 2013 [1 favorite]


Blazecock Pileon: No, it isn't. Alarmism is so old and well understood that there's even a 2500-year old fable about it.

This comment is not as clever as it might first appear.
When a wolf actually does appear, the villagers do not believe the boy's cries for help, and the flock is destroyed.

posted by BobbyVan at 11:33 AM on May 15, 2013


BobbyVan: "When a wolf actually does appear, the villagers do not believe the boy's cries for help, and the flock is destroyed. "

...because their ability to sense what was and was not a wolf was impaired by the gratuitous, attention-grabbing cries before the real one.

Part of the reason people throw up their arms when scandals happen is because the manufacturing of scandals from whole cloth distorts their perception of the real malfeasance. You can't cheer on every phony scandal as if it's the end of American Democracy and wash your hands of all of that when a genuine instance of unethical behavior comes around. You're part of the problem. (Not you in particular, but those who participate in scandal-mongering generally.)
posted by tonycpsu at 11:38 AM on May 15, 2013 [2 favorites]


because their ability to sense what was and was not a wolf was impaired by[...]

Wow, you don't give the villagers much credit, do you? So easily influenced by the media...erhm, the little boy.
posted by MoTLD at 11:40 AM on May 15, 2013 [1 favorite]


The byline of that article is March 2011. Where was his outrage for the decade prior?

Here is in 2010 on Wikileaks. He was also spoke out during the Bush years against things like the Patriot Act. He has said Bush and Cheney should have been indicted for their violations of the law. But hey corb, where was his outrage in the Nineties?

I can't think of another issue prominent liberals have gone after him for.

Prominent liberals have not gone after him on this to a significantly greater degree than conservatives have. If you look at the polls and don't come up with a new reason to ignore every conservative example it becomes pretty clear. Majorities of both sides of the political spectrum support Obama's efforts on this.
posted by Drinky Die at 11:41 AM on May 15, 2013 [1 favorite]


MoTLD: " Wow, you don't give the villagers much credit, do you? So easily influenced by the media...erhm, the little boy."

The media is really fucking powerful, and can delude the masses quite easily. I did not think this would be a controversial statement around here.
posted by tonycpsu at 11:41 AM on May 15, 2013


Drinky Die: "Majorities of both sides of the political spectrum support Obama's efforts on this."

So you'd still rather burn the straw man than address my original argument, then.
posted by tonycpsu at 11:42 AM on May 15, 2013 [1 favorite]


This comment is not as clever as it might first appear.

If every outrage that conservatives are worried about today needs a metaphorical Drudge Report siren planted at the top of the page, maybe you are making it harder for the rest of us who worry about genuine emergencies. Especially when conservatives only show up now, when there's a black guy in charge. Just sayin'
posted by Blazecock Pileon at 11:43 AM on May 15, 2013


Here is in 2010 on Wikileaks. He was also spoke out during the Bush years against things like the Patriot Act. He has said Bush and Cheney should have been indicted for their violations of the law. But hey corb, where was his outrage in the Nineties?

Congratulations, you've managed to find a guy who probably couldn't be named by 99% of conservatives. Tell me again how that means a majority (or even a significant minority) of conservatives and conservative commentators have been fighting the good fight?
posted by zombieflanders at 11:50 AM on May 15, 2013 [1 favorite]


The original argument I'm interested in started with:

And so it becomes, "We love Bush! He's our boy! Torture? That's cool. At least he's not Gore." And then it becomes, from the other side, "We love Obama! He's our boy! Torture? That's cool. Imprisoning someone for years without trial? That's cool. At least he's not Bush."

You seem to be arguing the Obama's base has in fact gone after Obama on Wikileaks but there does not appear to be any actual evidence of that. 80% of Democrats did not approve of the large Wikileaks release. There are a wide variety of factors for why that is, it does not have to be the team based stuff, but Wikileaks is not an example of Obama's base holding him accountable for his actions.

Really, two whole accounts, one from Ron Paul (who got barely 10% of the conservative vote) and one from Ron Paul's former right-hand man and the guy who approved racist literature in Paul's newsletters?

Ok here are more accounts.

And let's not forget that the original question was about commentators. What we got in response was Ron Paul and one of his minions. Nobody from Fox News


Okay here is someone from Fox News.

The byline of that article is March 2011. Where was his outrage for the decade prior?

Okay here is his outrage from a decade prior.

Congratulations, you've managed to find a guy who probably couldn't be named by 99% of conservatives.

No goalpost moving here!

I find that claim unlikely, given his prominent appearances over the years on the most popular cable news network that is wildly popular with conservatives. There is a reason you specifically asked for a Fox example. There aren't going to be many more well known pundits out there.

Tell me again how that means a majority (or even a significant minority) of conservatives and conservative commentators have been fighting the good fight?

Goalpost moved from the more general "a lot". I can't tell you the majority of conservatives support Wikileaks because, like the vast majority of liberals, they don't. If supporting them is fighting the good fight, neither side is doing that.
posted by Drinky Die at 12:08 PM on May 15, 2013 [3 favorites]


Drinky, I'm not sure how many times I can quote myself and restate that I was talking about prominent commentators, not "Obama's base", before it gets through to you. Either you lack reading comprehension or you're being strategically obtuse, and I'm done trying to nail your jell-o to the wall.
posted by tonycpsu at 12:18 PM on May 15, 2013 [1 favorite]


You've been kind of confusing tony. You stated "we're talking about what issues the respective bases have been going after the President on." I think if Obama's base does not approve of Wikileaks that is good evidence they aren't going after on him on it since they mostly agree with him. I mean, you stated in that comment we are not talking about what people rank as most important in opinion polls but I haven't brought up any polls that rank issues either. I'm not sure applying arbitrary grades to the influence of pundits on each side that for some reason eliminates all the conservatives is a better guide to where the bases are than the polls. Anyway, in my arbitrary personal opinion I consider Paul and Napolitano to be pretty influential on the far right. The libertarian leaners are a relatively small but important part of the Republican coalition. They don't speak for Republicans but the pro-Wikileaks folks on the left aren't doing significantly better on that score.
posted by Drinky Die at 12:38 PM on May 15, 2013 [1 favorite]


I fully expect that outraged conservatives will support this legislation proposal from the White House. Because if they don't, they are a bunch of hypocritical, opportunistic weasels. Let's see less partisan obstructionism from the right wing and more consistent, unequivocal defense of civil liberties, regardless of the race of the sitting President.
posted by Blazecock Pileon at 1:13 PM on May 15, 2013 [2 favorites]


You mean the "media shield" law the White House tried to gut in 2009 by removing reporter protections in national security cases? The one that didn't even get a vote when Democrats controlled both houses of Congress?

Now who's being naive, Kay?
posted by BobbyVan at 4:48 PM on May 15, 2013


You're free to provide an alternative that the GOP has put up at any time, or words from the sitting GOP Senators that have vehemently opposed legislation weakening 1st Amendment protections for national security leaks and/or never pushed Obama to stop them, since this is obviously a strongly bipartisan concern.
posted by zombieflanders at 5:01 PM on May 15, 2013


Maybe this is more obviously a strongly bipartisan failure.
posted by MoTLD at 5:29 PM on May 15, 2013 [1 favorite]


Seems a bit "opportunistic and hypocritical" for Obama to push for a media shield law now, when his Administration is under fire, don't you think? Why should he have *any* credibility on the issue of press freedom? Are you all really such partisan suckers?
posted by BobbyVan at 5:34 PM on May 15, 2013


The fuck, Bobby?
posted by klangklangston at 5:37 PM on May 15, 2013 [1 favorite]


no one seemed to mind when Blazecock twice suggested that criticism of Obama was racially motivated...
posted by BobbyVan at 5:42 PM on May 15, 2013 [1 favorite]


Seems a bit "opportunistic and hypocritical" for Obama to push for a media shield law now, when his Administration is under fire, don't you think? Why should he have *any* credibility on the issue of press freedom?

So you're admitting that he can't win for trying? He can not propose anything (let's forget for the moment that bills originate in Congress) and you'll complain that he's not doing anything, he can propose something that can be improved and it's not worth doing because that makes him opportunistic and hypocritical, or he can provide something better and it's not worth doing because of his credibility on the issue (never mind the credibility of anybody in Congress).

And people wonder what the fuck is wrong with modern American conservatism.
posted by zombieflanders at 5:46 PM on May 15, 2013


Are you all really such partisan suckers?

Since we're all such partisan suckers, please enlighten us as to what exactly your solution is from your enlightened, presumably "moderate," and pure-heartedly bipartisan perch high above us plebs rolling around in the muck like heathen animals.
posted by zombieflanders at 5:49 PM on May 15, 2013


I'd like to suggest we get to the bottom of this particular situation before presuming we need to change our laws. We seem to have gotten along pretty well without a formal shield law since 1979 (when law enforcement was first permitted to obtain phone records with only a subpoena). Conservatives aren't the only ones saying that Obama is worse than Nixon when it comes to press freedom.

What is blindingly obvious now is that new talk of a shield law is meant to distract us from pursuing the truth. We shouldn't fall for it.
posted by BobbyVan at 6:01 PM on May 15, 2013


I'd like to suggest we get to the bottom of this particular situation before presuming we need to change our laws. We seem to have gotten along pretty well without a formal shield law since 1979

Hey guys, this is an enormous problem! Except for the part where it's hasn't been a problem because this never happened between 1979 and 2009! But now it is!

What is blindingly obvious now is that new talk of a shield law is meant to distract us from pursuing the truth. We shouldn't fall for it.

Yes, pursuing the truth hasn't mattered all the other times it's happened, but this time it's for real, and trying to fix the problem going forward isn't worth it when we can do some partisan witch-hunting.
posted by zombieflanders at 6:24 PM on May 15, 2013 [2 favorites]


"Yes, advocating a media shield law hasn't mattered since my Administration killed one in 2009, but this time it's for real!"
posted by BobbyVan at 6:33 PM on May 15, 2013


So, wait, Obama should oppose a shield law because that way it'll happen? And what "pursuing the truth" is a shield law distracting us from? Don't we pretty well already know the truth here, and we're talking about what can be done to remedy the problem?

Sorry, dude, your GOP hardon has clouded your brain to the point that you're just gibbering bullshit now.
posted by klangklangston at 7:28 PM on May 15, 2013 [2 favorites]


Dear Eric Holder: You’re Doing Recusal Wrong
If DOJ ultimately decides to charge the AP’s sources, if that person has the kind of legal representation DC bigwigs often have, I fully expect them to challenge every bit of their prosecution. After all, by subpoenaing the AP, Cole claimed that DOJ could not get the information from any other source. So if AP’s sources are indicted, they can rest assured that their prosecution went through this bottleneck of an Acting AG who had no paperwork to prove he had the authority to sign off on the claims he was making to get information he was certifying was absolutely necessary to find them. And from this subpoena forward, everything else will be fruit of a tainted AG, at least if you’ve got fancy lawyers.

Dumb.

One last thing. Also in today’s hearing, Holder admitted that it probably would have been a good idea to write down this recusal thing in public. Which, if they do ever charge AP’s sources and if said sources have the resources to make this obvious challenge, they’ll cite in court to document that even the guy who delegated this authority thinks it would be smarter if he did so in writing.

Seriously, this entire recusal process has been an own goal. As I said, I don’t think DOJ is pulling anything fishy. But the entire point of recusing is to ensure there’s proof nothing fishy happened. And in this case, DOJ has anything but.
posted by tonycpsu at 7:29 PM on May 15, 2013 [1 favorite]


You'd think for all the alleged crackdown and wiretapping going on here Obama would be having less trouble getting his way on gun control, health care reform and grand bargaining.
posted by humanfont at 7:39 PM on May 15, 2013


What is blindingly obvious now is that new talk of a shield law is meant to distract us from pursuing the truth. We shouldn't fall for it.

And there we go.
posted by Blazecock Pileon at 9:41 PM on May 15, 2013


The media is really fucking powerful, and can delude the masses quite easily. I did not think this would be a controversial statement around here.

I was going to ignore this because it's tangential, but the more I think about it, the more it bothers me.

I have to know, since I'm fairly new yet, is this not a controversial statement around here?

Are the folks "around here" somehow not gullible enough to be deluded like "the masses"? We're the elite? How does that set us apart from the manipulative media themselves?

IMO, you have your cause and effect reversed. The various segments of the media, liberal, conservative, and otherwise, pander to their bases. IOW, the media doesn't cause bias, it just reflects it.

PS - while I'm expressing my righteous indignation: the race card, really?
posted by MoTLD at 12:42 AM on May 16, 2013 [1 favorite]


PPS - Sorry, the PS was confusing since it's directed at someone else. Should've just made it another comment or let it go altogether.
posted by MoTLD at 12:47 AM on May 16, 2013


So, wait, Obama should oppose a shield law because that way it'll happen? And what "pursuing the truth" is a shield law distracting us from? Don't we pretty well already know the truth here, and we're talking about what can be done to remedy the problem?

Sorry, dude, your GOP hardon has clouded your brain to the point that you're just gibbering bullshit now.


It's not that hard to understand, dude. Yes, Obama should support the law now. He also should have supported it instead of helping to kill it in 2009. He should have supported it in 2010. He should have supported it in 2011. He should have supported it in 2012. He should have supported it earlier in 2013. He should have talked to his Attorney General and told him that just because we don't have a law to shield the press doesn't mean we can't act as if there was one and approach this particular case a bit differently.

His priority was to prosecute leakers, not to protect the press. There are some very compelling arguments to be made that prosecuting leakers is a very important thing to do, but he made his choice there and it's not surprising the press is hostile to it and wants blood.
posted by Drinky Die at 4:58 AM on May 16, 2013 [2 favorites]


Yes, Obama should support the law now. He also should have supported it instead of helping to kill it in 2009.

We've had a legislative branch effectively controlled by a Republican minority (amazing fact, for a so-called democracy, but there it is) throughout the Obama years, and a Republican majority through most of the Bush years. So if laws protecting civil liberties were matters that conservatives really, truly cared about, they've had decades, literally decades, to do something positive. I'm one of the biggest critics of the Obama administration on this site, and even I know going after him on this this is more of the same partisan, racist bullshit that conservatives have been peddling since the man took office. Enough already.
posted by Blazecock Pileon at 5:21 AM on May 16, 2013 [1 favorite]


I'm a big critic of Obama in some areas myself and a big fan in others, I take each issue and look at the facts as best I can. You can make a case that the criticism of Obama is wrong in this situation, but you can't even come close to making a case that it is partisan or based on race. Virtually every major media organization in the country is up in arms right now, you can't make the case it's because they are Republican racists.
posted by Drinky Die at 5:31 AM on May 16, 2013 [2 favorites]


He also should have supported it instead of helping to kill it in 2009.

Except for the part where that didn't happen, and doesn't take into account that (assuming Lieberman wouldn't scuttle the bill, a 99.99% likelihood) there were all of two months to get the bill passed before Brown made the Senate filibuster-ready.

He should have supported it in 2010. He should have supported it in 2011. He should have supported it in 2012. He should have supported it earlier in 2013.

Yes, all those years that there was not a filibuster-proof majority (again assuming Lieberman would have gone along with it) plus a very vocal contingent of GOP members, some of whom seem quite cheesed off at the moment, actually calling for more crackdowns on leaks.

So, again, if a bill is proposed (or if the Democrats want to amend it to make it stronger and Obama supports that) and the GOP opposes it, this very much becomes a partisan issue, because it means they want it both ways: prosecute leaks with a vengeance unless it makes the President look bad.
posted by zombieflanders at 5:45 AM on May 16, 2013


Except for the part where that didn't happen

Well, tell it to Chuck Schumer.

And in a statement, Mr. Schumer said: “The White House’s opposition to the fundamental essence of this bill is an unexpected and significant setback. It will make it hard to pass this legislation.”

-
doesn't take into account that (assuming Lieberman wouldn't scuttle the bill, a 99.99% likelihood) there were all of two months to get the bill passed before Brown made the Senate filibuster-ready.

Why should I judge Obama's actions on the bill based on something that happened later that he would not have predicted would happen? Nothing the Republicans do excuses Obama's own actions. Republicans are shitheads, we are all well aware of that, it doesn't mean Obama should not be criticized when he messes up.

If the bill comes up again with the original essence intact, everyone should support it. It will not erase their past actions to scuttle the changes or how journalists have been treated by the DoJ in the meantime.
posted by Drinky Die at 5:54 AM on May 16, 2013 [2 favorites]


Why should I judge Obama's actions on the bill based on something that happened later that he would not have predicted would happen?

You're certainly judging him on actions that he and you knew was already in place when you criticized him for 2010-2013.

Republicans are shitheads, we are all well aware of that, it doesn't mean Obama should not be criticized when he messes up.

Again, if you hadn't gone after him for 2010-2013, when all there was Republicans being shitheads, this criticism would seem less misplaced and, yes, partisan.
posted by zombieflanders at 6:02 AM on May 16, 2013


I'm not judging him for not passing the bill in 2010-2013, I'm judging him for not supporting it. Until this scandal, his position was the previous one, the fundamental opposition to the essence of the proposal Schumer mentions.
posted by Drinky Die at 6:07 AM on May 16, 2013


I mean, he's not even going to pass it now, if that was my criteria I would not be praising his current shift.
posted by Drinky Die at 6:07 AM on May 16, 2013


Actually, it seems more likely Obama is just restating support for the bill as he wanted it revised and nothing has changed. So, I'm not really clear on if he should be praised or not at this point until there is more detail on what he is now proposing.

Either way, it is clear any bill that passes will not meet liberal concerns as well as if it had passed back when Democrats controlled Congress and it seemed some in the administration seemed intent on killing a fair shield bill.
posted by Drinky Die at 6:34 AM on May 16, 2013


Actually, it seems more likely Obama is just restating support for the bill as he wanted it revised and nothing has changed. So, I'm not really clear on if he should be praised or not at this point until there is more detail on what he is now proposing.

Either way, it is clear any bill that passes will not meet liberal concerns as well as if it had passed back when Democrats controlled Congress


So nothing has changed, except you don't know what's being proposed and don't know if nothing has changed, but it's clear that nothing has changed. Well, okay then.
posted by zombieflanders at 6:45 AM on May 16, 2013 [1 favorite]


No, that would not be an accurate paraphrase of my comment.
posted by Drinky Die at 6:51 AM on May 16, 2013


It's important to note that a reporter shield law is going to create some new problems even as it solves some old ones. On some level, it's understandable why a President, be they George W. Bush or Barack Obama, would have trouble with a law protecting journalists who don't wish to give up the names of their sources of classified leaks. Such a law would effectively allow someone holding a security clearance to leak anything they want with impunity, so long as the journalist they're leaking to doesn't burn them.

This sounds like a good thing to anyone concerned that the government keeps too many secrets (a position well-represented on both sides of the political spectrum), but it's not without its problems. Because most leaks of classified information fall into the Scooter Libby "people with power selectively leaking details to control the media narrative or punish political enemies" category, and not the Daniel Ellsburg "whistleblower reveals government misconduct" category, my concern is that we could see many future repeats of the 2002 run-up to the Iraq War, where a well-connected reporter can basically become a government mouthpiece, laundering classified intelligence reports of questionable veracity, and passing them on as verified facts coming from anonymous government sources, which the administration can then point to on record and say "hey, the New York Times said X is true", without acknowledging they themselves are the source of the leaks.

I'm not exactly how to square this circle. The problem with Obama's preferred approach of exceptions for national security cases is that virtually any leak could fall under this umbrella, rendering the shield law moot. I suppose it would be possible to have some sort of court set up a-la FISA to decide whether the leak constitutes a "national security" case, but it's hard to avoid these courts devolving toward rubber stamp approval.

My gut feeling has always been "when in doubt, more information is better", but I don't think the case for a blanket reporter shield law is a slam dunk.
posted by tonycpsu at 8:23 AM on May 16, 2013 [1 favorite]


You're free to provide an alternative that the GOP has put up at any time, or words from the sitting GOP Senators that have vehemently opposed legislation weakening 1st Amendment protections for national security leaks and/or never pushed Obama to stop them, since this is obviously a strongly bipartisan concern.

The problem with that is that our 1st Amendment protections have rarely, if ever, been weakened by actual legislation. They are not weakened by the Legislative branch, but by the Executive and Judicial branches - by the directions given to the various federal agencies around how they will enforce their policies, and by when the courts choose to oppose violations.
posted by corb at 8:36 AM on May 16, 2013


The AP Phone Scandal is potentially *GREAT* news for civil libertarians!!!

Howso? Didn't AP just have their rights violated?

No. Because legally, the government had a fairly strong argument that they had the right to datamine AP's phonelogs for calls from government sources that may have had access to the confidential intelligence which was leaked.

The reason the scandal is good news is that the POTUS has shown time and again that he is willing to enforce bad laws -- ones he himself has claimed not to like -- by the book, until the political will exists to change them. And now, the will exists for passing a federal shield law for reporters... legislation that both Obama and Hillary Clinton co-sponsored while senators, and which he is now supporting.

It's likely to be the best possible outcome... but the public needs to push recalcitrant statists to do the right thing.

Frankly, it will be interesting to see just how many in the GOP congress actually want a Federal reporter shield law, because it's traditionally been legislation that they have opposed. In 2008, 42 out of 46 Senate Republicans voted to filibuster the legislation, so that it wouldn't come to a vote.

If there is a scandal, it is perhaps that all of this was just an elaborate conspiracy to trick/force the GOP to pass common-sense legislation defending the freedom of the press.
posted by markkraft at 8:48 AM on May 16, 2013 [1 favorite]


I'm opposed to the shield law. Creating a new right--the right to shield a criminal from detection, is wrong.

Imagine an "Interview with a Pedophile" story. Good idea to shield that person from criminal discovery, when they could harm another child or could be in the process of harming children?
posted by Ironmouth at 10:13 AM on May 16, 2013


He should have talked to his Attorney General and told him that just because we don't have a law to shield the press doesn't mean we can't act as if there was one and approach this particular case a bit differently.

No. It is incredibly improper for the President to involve himself in active criminal cases.
posted by Ironmouth at 10:15 AM on May 16, 2013


Also, people do realize that the Watergate prosecutors subpoenaed reporters, right?
posted by Ironmouth at 10:17 AM on May 16, 2013


You can make a case that the criticism of Obama is wrong in this situation, but you can't even come close to making a case that it is partisan or based on race.

I don't think criticizing Obama on his civil liberties record is out of line. I would join others in doing that, when those others are people doing so in good faith. I have, in fact, been critical of Obama's record here since his Senatorial days, when his FISA vote helped grant full immunity to telecom companies for illegal conduct during the Bush years (conduct that conservatives supported, for what it matters).

I do take serious issue with the idea that this latest outrage du jour is not based upon being (at least partially) another partisan talking point, given the timing of when this is being amplified by right-wing mainstream media, which has otherwise described the AP as being in Obama's pocket for the last several years.

Indeed, I think conservatives have shown time and time again that as a political entity, they don't really give a good Goddamn about our civil rights, about eavesdropping or even strong, independent media voices — in fact, it is the opposite, that they support corruption when it is their guys doing it, as the widespread support Bush enjoyed for his policies showed — and that this issue is getting airtime because opportunist, obstructionist Republicans are doing everything possible to render Obama's presidency impotent (and destroy the United States in the process, if that's what it takes, handing over the remains to their lobbyist friends in big business).

And the idea that conservatives aren't substantially opposed to Obama's record on the basis of his race is not borne out by their history of racist jokes, commentary and behavior. This latest outrage is just a consequence of a generally well-understood pattern of systematic racism that started publicly with McCain and Palin's race-baiting/"othering" in 2008 and which hasn't died down much since.
posted by Blazecock Pileon at 2:21 PM on May 16, 2013


they support corruption when it is their guys doing it

Conservatives do not have a monopoly on hypocrisy.
posted by MoTLD at 5:57 PM on May 16, 2013


Eric Holder Claims Terrorists Are Involved In 'IP Theft'
posted by homunculus at 6:34 PM on May 16, 2013 [1 favorite]


"Imagine an "Interview with a Pedophile" story. Good idea to shield that person from criminal discovery, when they could harm another child or could be in the process of harming children?"

Yup. You might as well argue that there should be no immunity to prosecution available for people who are witnesses, or no plea bargains.

And you get a double eye roll for inventing a "think of the hypothetical children."
posted by klangklangston at 7:13 PM on May 16, 2013


And the idea that conservatives aren't substantially opposed to Obama's record on the basis of his race is not borne out by their history of racist jokes, commentary and behavior.

Yes, but we're talking about the majority of mainstream media sources like WaPo and NYT, not some racist conservative. These aren't people who jumped on Benghazi and pretended it was a scandal because "ARGH WE HATE BLACK PEOPLE AND OBUMMER" these are generally supportive outlets who don't like the DoJ going, what they consider, overboard in taking records from the Associated Press.

He should have talked to his Attorney General and told him that just because we don't have a law to shield the press doesn't mean we can't act as if there was one and approach this particular case a bit differently.

No. It is incredibly improper for the President to involve himself in active criminal cases.


And yet they do it all the time, like the Presidential comments on the Trayvon Martin case as it was being investigated by the feds or the Presidential commentary on the local legal situation between Crowley and Gates.

The AP is being treated to a unique situation where the President is (apparently?) claiming they have been treated in a way that should be prevented by law. It is not absurd to suggest he can ask his employees to reach for a higher standard than that.
posted by Drinky Die at 8:20 PM on May 16, 2013


argh Rachel Maddow is such a RACIST CONSERVATIVE REPUBLICAN argh.

Rachel Maddow Calls Out Obama Over 'Irrevocable Harm' Caused To AP (VIDEO)
posted by Drinky Die at 8:22 PM on May 16, 2013 [1 favorite]


Rachel Maddow is such a RACIST CONSERVATIVE REPUBLICAN

Maddow is not a conservative, as far as I know, and so therefore this interesting observation is completely unrelated to what I said. Nonetheless, conservatives still have — through their own activities over the last century — no currency in any discussion about freedom of speech, civil liberties, journalistic freedom, and so forth. Either the AP is in Obama's back pocket or they are victims — the right wing can't suddenly have it both ways.

Well, actually, they can. And do. Because they bully the press and the public into believing they are victims of a vast left-wing conspiracy. But we keep letting them cry wolf and we keep giving them the benefit of the doubt. It's been working out well so far for all Americans, right?
posted by Blazecock Pileon at 1:38 AM on May 17, 2013


it's not surprising the press is hostile to it and wants blood.

So, it looks like neither the NYT nor the WP (which, I should note, wasn't exactly presenting a united OMG AP IS WORST THING EVAR front) had any of the scandals on their front page this morning, apart from an article in the NYT about how the GOP may have overreached on scandalmania, so the hostility seems to have fizzled.

Possibly it's because they have a new target to be hostile to, this time for being lied to on an actual non-scandal and have now been burned by their sources. This time, the sources were GOP Congressional staffers that doctored e-mails from the State Department concerning Benghazi when they--all aboard the irony train!--leaked them to the press:

It's Official: Those Bogus Email Leaks Came From Republicans
Republicans in Congress saw copies of these emails two months ago and did nothing with them. It was obvious that they showed little more than routine interagency haggling. Then, riding high after last week's Benghazi hearings, someone got the bright idea of leaking two isolated tidbits and mischaracterizing them in an effort to make the State Department look bad. Apparently they figured it was a twofer: they could stick a shiv into the belly of the White House and they could then badger them to release the entire email chain, knowing they never would.

But it was typical GOP overreach. To their surprise, the White House took Republicans up on their demand to make the entire email chain public, thus making it clear to the press that they had been burned. And now reporters are letting us all know who was behind it.

This has always been the Republican Party's biggest risk with this stuff: that they don't know when to quit. On Benghazi, when it became obvious that they didn't have a smoking gun, they got desperate and tried to invent one. On the IRS, their problem is that Democrats are as outraged as they are. This will force them to make ever more outrageous accusations in an effort to find some way to draw a contrast. And on the AP phone records, they have to continually dance around the fact that they basically approve of subpoenas like this.

A sane party would take a deep breath and decide to move on to other things. But the tea partiers have the scent of blood now, and it's driving them crazy. Thus the spectacle of Michele Bachmann suggesting today that it's time to start impeachment proceedings.

The GOP's adults can't keep their lunatic fringe on a leash, which means it's only a matter of time until they make fools of themselves on all three of the pseudoscandals that are currently lighting up the airwaves. The Republicans have met the enemy, and it is them.
In what I'm sure is a huge coincidence, it looks like Rep. Issa has suddenly become very camera-shy.
posted by zombieflanders at 5:42 AM on May 17, 2013 [4 favorites]


Maddow is not a conservative, as far as I know, and so therefore this interesting observation is completely unrelated to what I said.

It has to do with explaining why conservatives are angry about this too. The scandal is legitimate. Non-partisan and Obama friendly folks are making that clear. Republicans talk a lot about biased mainstream media, but their own dominance of the discourse is based on their own media outlets. It could just as well be Fox News next time instead of the AP.

Trying to fit this into a phony racism narrative makes absolutely zero sense. The ACORN scandal? Yeah, obviously. Shirley Sherrod? Duh, of course. Birtherism. Can't be interpreted any other way. A scandal surrounding subpoenas of the AP some view as overboard? Err, no.
posted by Drinky Die at 9:45 AM on May 17, 2013 [1 favorite]


White House Shield Bill Could Actually Make It Easier For the Government to Get Journalists' Sources
posted by homunculus at 5:35 PM on May 17, 2013 [1 favorite]


The AP is being treated to a unique situation where the President is (apparently?) claiming they have been treated in a way that should be prevented by law. It is not absurd to suggest he can ask his employees to reach for a higher standard than that.

I oppose Obama's efforts on that. There is no right to shield a criminal.
posted by Ironmouth at 6:56 PM on May 17, 2013


Sure, but there are all kinds of rights regarding how you can approach investigating and prosecuting criminals.
posted by Drinky Die at 7:07 PM on May 17, 2013


State Secrets: Ben Franklin and WikiLeaks
posted by homunculus at 12:37 AM on May 18, 2013


Interesting article, homunculus.

I'm having trouble following the link to the source material (on jstor, so probably paywalled anyway). The server times out.

There is some irony here: the article is called Network Down.
posted by MoTLD at 9:01 AM on May 18, 2013


In other news: AP's Attempt At DRM'ing The News Shuts Down
posted by homunculus at 12:12 PM on May 18, 2013


White House Shield Bill Could Actually Make It Easier For the Government to Get Journalists' Sources

Great article with lots of solid supporting links; it makes a convincing case that the shield bill compromise Obama is now pushing would be a big step *backwards* from the current situation. The chutzpah is proposing it in response to the AP phone records overreach is astonishing:

Worse, there’s a strong argument that passing the bill as it ended in 2010 will weaken rights reporters already have and make it easier for the government to get sources from reporters. Take the case of New York Times reporter James Risen, who is currently fighting a subpoena to reveal his sources for his book on the Bush administration, State of War. A district court held that Risen was protected from testifying because of the Fourth Circuit’s common law privilege that balances the interests of the government versus the interests of the free press. They held the test was the same for national security cases as every other criminal case—just as it should be.

"A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” the district court judge aptly wrote. (Note: the balancing test used by the judge was very similar to the original, good shield bill Obama supported as a Senator.)

But if the watered-down shield law passed in 2010 then, it would have overrode this common law privilege and the government likely could have invoked the national security exception and directed Risen to testify. Incidentally, the decision in the government’s appeal of James Risen’s case could come down any day now, as it was argued a year ago this week. Whatever the outcome, it will be the most significant press freedom case in a decade or more.

During oral arguments in the Fourth Circuit Court of Appeals, the government surprised the judges when asked to explain why the government’s interests outweigh the public’s interest in a free press in Risen’s case. The government refused to argue the specifics of the case, and instead, they asserted that there should never be reporter's privilege in stories involving national security. The sweeping, dangerous nature of the Justice Department’s arguments really has to be read to be believed.

If President Obama really wants to right the wrong in the Associated Press case, he could disavow his Justice Department’s arguments in the James Risen case. He could also put forth the federal shield law he co-sponsored in 2007, rather than the “compromise” from 2009.

posted by mediareport at 4:31 AM on May 19, 2013 [2 favorites]


Interesting article! However, I have a pet peeve to pick...

The so-called "Freedom of the Press Foundation" locks out zooming on its blog. Odd, and just seemingly antithetical to its stated purpose of freedom.

Anyway, a quick google search turned up quite a few more instances of the article. Most of them are on sites which do not restrict zooming, so pet peeve averted, but it struck me as odd that the same article showed up on so many sites without any attribution to an original site, just to the author.
posted by MoTLD at 11:03 AM on May 19, 2013


zombieflanders: "It's Official: Those Bogus Email Leaks Came From Republicans "

It's disturbing that there's been almost total silence from the media about this bad leak. ABC never even had to put out an official retraction -- they just posted an "update" the original story, with no acknowledgement that the reporter lied about the nature of how he got the information (the original story said "ABC obtained" the emails when they never actually obtained anything) or that the source fed them completely bogus information designed to discredit the White House.

Jonathan Karl's colleagues should be chomping at the bit to pressure him to burn his source. The idea that a GOP official would fraudulently misrepresent inter-agency communications in order to score political points is itself scandalous, and seems like something the media would love to make some hay out of. But so far, there's been next to nothing coming from mainstream media organizations questioning how this happened.

Leaks like this are exactly why I'm concerned about the prospect of an iron-clad reporter shield law. Sometimes, neither the reporters nor the leakers deserve protection.
posted by tonycpsu at 4:52 PM on May 19, 2013



WaPo:

When the Justice Department began investigating possible leaks of classified information about North Korea in 2009, investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.

They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails.

The case of Stephen Jin-Woo Kim, the government adviser, and James Rosen, the chief Washington correspondent for Fox News, bears striking similarities to a sweeping leaks investigation disclosed last week in which federal investigators obtained records over two months of more than 20 telephone lines assigned to the Associated Press.

posted by Drinky Die at 7:04 AM on May 20, 2013 [1 favorite]


It's Official: Those Bogus Email Leaks Came From Republicans

Rachel Maddow: Media not unscathed by weeks scandal frenzy
posted by homunculus at 12:55 PM on May 20, 2013


Jonathan Karl's colleagues should be chomping at the bit to pressure him to burn his source.

Charles Pierce points to some interesting background on Karl at FAIR.
posted by homunculus at 3:03 PM on May 20, 2013


The case of Stephen Jin-Woo Kim, the government adviser, and James Rosen, the chief Washington correspondent for Fox News, bears striking similarities to a sweeping leaks investigation disclosed last week in which federal investigators obtained records over two months of more than 20 telephone lines assigned to the Associated Press.


There are key differences. What Rosen did was aid and abet. Let Prez explain.

What Rosen did was most certainly aid and abet (and participate in a conspiracy to) illegal dissemination of classified documents.

If you'll remember, the Barksdale Organization (the pager part was based on the case of Melvin Williams) used a pager code to hide the inside communications of a drug operation from the police. This is a legal act made illegal by its use to further a crime.

Similarly, Rosen gave to Kim a code to use to facilitate communications if he thought the normal channels were being observed:
thus [sic] I instruct individuals who wish to contact me simply to send me an e-mail to this address [XXXXX@gmail.com]. One asterisk means to contact them, or that previously suggested plans for communication are to proceed as agreed; two asterisks means the opposite.
The only purpose to change communications methods is to assist Kim in hiding his activity disclosing the information from the FBI. That is the same as setting up a pager code network like in the Wire. You can't do that. You must rely on the source to do the work of concealing his illegal activities. Assisting the source in anyway in avoiding detection from the police is plain and simple, conspiracy and aiding and abetting.

These sorts of communications systems are old hat to criminal lawyers and federal judges hearing criminal cases. Most drug cases go deep into the woods on this stuff. So it is no surprise that a federal judge signed off on this.

It is important to note that federal law only allows for searches of First Amendment workproduct when there is active aiding and abetting of the crime by the reporter. Helping conceal the crime of the leak is aiding and abetting. 18 U.S.C. section 2(a) holds that: "(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."
posted by Ironmouth at 9:53 AM on May 21, 2013


Politico: Sharyl Attkisson, the Emmy-award winning CBS News investigative reporter, says that her personal and work computers have been compromised and are under investigation.

"I can confirm that an intrusion of my computers has been under some investigation on my end for some months but I'm not prepared to make an allegation against a specific entity today as I've been patient and methodical about this matter," Attkisson told POLITICO on Tuesday. "I need to check with my attorney and CBS to get their recommendations on info we make public."

In an earlier interview with WPHT Philadelphia, Attkisson said that though she did not know the full details of the intrustion, "there could be some relationship between these things and what's happened to James [Rosen]," the Fox News reporter who became the subject of a Justice Dept. investigation after reporting on CIA intelligence about North Korea in 2009.

posted by Drinky Die at 9:55 AM on May 21, 2013 [1 favorite]


Drug dealing is kind of an interesting comparison. It's illegal but debatable if it should be as it is the result of a broken system of prohibition that isn't working. The Barksdale organization wouldn't exist without it and Baltimore would have less murder and robbery and HIV and overdoses and the police might be able to start working with their community rather than against it.

As long as our government remains an untrustworthy actor that hides its own wrongdoing we will have a need for people to expose what is going on. When that harms innocents, sometimes a big share of the blame has to be with the group that is creating and perpetuating the broken system the criminals are reacting to.

You can take it on a case by case basis, when the leak is something like this North Korea thing where nothing important was really revealed the journalist has really messed up. When it's revealing wrongdoing by the CIA or the military it's entirely justified.

I think we have to balance our concerns here so that we don't scare people away from leaking what needs to be leaked. Protecting intelligence sources is a concern, but not the only one. I think we should be pretty lenient with journalists in this situation unless they do something much worse than soliciting for the information or helping to protect the identity of their source. Things like bribery or blackmail for information should clearly be out of bounds.
posted by Drinky Die at 10:23 AM on May 21, 2013


You can take it on a case by case basis, when the leak is something like this North Korea thing where nothing important was really revealed the journalist has really messed up. When it's revealing wrongdoing by the CIA or the military it's entirely justified.

A journalist can receive an illegal leak. He can't aid and abet it. This is the law, plain and simple. You can wish for it to be another way, but the government is charged with enforcing it.

As for Barksdale, he's a murderer in the show. The government did not make him kill, or provide heroin to people.
posted by Ironmouth at 10:54 AM on May 21, 2013


Functionally, you are going to have to protect the identity of your sources to expect anyone to leak to you. It's a necessary part of the process. If that means you have to use a code or encryption, you are going to have to use it and take your chances with the law. Looks like this is mostly a case of just being sloppy. For two guys trying to conceal their conversations they left a lot of easily discoverable records establishing their relationship at the time of the leak.

As for Barksdale, he's a murderer in the show. The government did not make him kill, or provide heroin to people.


No, they created a situation in which it was inevitable someone would have. That doesn't mean you don't put him in jail, but if you actually give a fuck about the murders and the addicts you work to reform the system instead of just jailing Barksdale so Marlo can take his place.

That was pretty much the entire message of the show. The drug trade would soldier on at full speed no matter what the police did. Working to reform the system itself was the only potential solution, but the system itself works against that option.

We shouldn't get too caught up in the metaphor since the connection between a show about policing the drug trade and this story is pretty tenuous, but I think reforming the American government so it is more transparent and good and honest is the way to solve the issues at the heart of the matter.
posted by Drinky Die at 11:11 AM on May 21, 2013


Functionally, you are going to have to protect the identity of your sources to expect anyone to leak to you. It's a necessary part of the process.

99% of leaks are legal. Many are protected by Whistleblower disclosure laws. Working with classified information is a totally different ball game. Their disclosure of information to you is a federal felony. You cannot do things that would constitute aiding them hiding a crime, or you will be subject to the law yourself.

What happened here is proper prosecutorial restraint. They rightly felt that going after the reporter criminally would have not been the right thing. But that doesn't mean they could not use the obvious aiding and abetting to get evidence for convicting Kim.

Also, most stories that rely on classified info tell us nothing about misconduct or the like. They are usually of the sort we have here, ones that burn our sources abroad while telling us nothing we need to know to make real decisions in our lives.
posted by Ironmouth at 11:19 AM on May 21, 2013


We shouldn't get too caught up in the metaphor since the connection between a show about policing the drug trade and this story is pretty tenuous

Let me be clear. It is not a metaphor. What the reporter did is exactly what "Little" Melvin Williams did in real life-attempted to use electronic means to hide illegal activity. They are functionally and legally engaged in attempting to conceal illegal activity from law enforcement. Doing that is breaking our law.
posted by Ironmouth at 11:22 AM on May 21, 2013


Working with classified information is a totally different ball game. Their disclosure of information to you is a federal felony. You cannot do things that would constitute aiding them hiding a crime, or you will be subject to the law yourself.

Yes, that would be the "take your chances with the law" part I mentioned above. In this discussion you seem to be chiefly concerned with what is legal. I'm more interested in focusing on what is in the best interests of the public and adapting the law and our enforcement as best we can to take that into account. I discussed how I think we should prioritize our concerns in the case of government leaks above.

Let me be clear. It is not a metaphor.


Sure, I understand that in your legal view the same sort of crime had been allegedly committed. However when you step back from examining this only from a your legal perspective you will note that a journalist protecting a source is in some notable ways very different from a street criminal engaging in a conspiracy to commit murder. One action is in a much more significantly grey moral area than the other.
posted by Drinky Die at 11:41 AM on May 21, 2013


Sure, I understand that in your legal view the same sort of crime had been allegedly committed. However when you step back from examining this only from a your legal perspective you will note that a journalist protecting a source is in some notable ways very different from a street criminal engaging in a conspiracy to commit murder. One action is in a much more significantly grey moral area than the other.

The thing is a federal judge also thought it was probable cause that a crime was committed. It isn't a gray area. The reporter should have known the law here.

Personally, I'm not in favor of a shield law. The idea that I cannot subpoena someone or get a warrant when they have information relative to the exercise of the justice system seems all wrong to me. These are private corporations, whose control of sources is as much about being first for profit purposes as anyone else (hence Rosen's admission to his source that his main goal was being first).

A big part of the problem is the privileged view of journalists. They thing they are entitled to avoid the process of justice in ways that other citizens and other corporations are not. This, after significant protections already exist in the law, such as the law the warrant was issued under. They are private corporations looking for scoops.

I remember the biggest hullaballoo on twitter when the President limited photos of him and Tiger Woods playing golf. They screamed press freedom after that! The only purpose of that press freedom was to get photos that would sell.
posted by Ironmouth at 12:09 PM on May 21, 2013


The thing is a federal judge also thought it was probable cause that a crime was committed. It isn't a gray area.

I'm not sure how I could have possibly been more clear I was talking about a moral grey area and that I understand your legal opinion about the alleged crime.

I remember the biggest hullaballoo on twitter when the President limited photos of him and Tiger Woods playing golf. They screamed press freedom after that! The only purpose of that press freedom was to get photos that would sell.


Yes, and they also sell things like Abu Gharib and torture at Guantanamo. In the future if a journalist encounters a situation in which they need to conceal the identity of a source using encryption in order to reveal something like that, they should go ahead and do so. In my personal view they should not have to face jailtime for that, even if some other journalist might perhaps use the same methods to get their golf photos or whatever. Though as I mentioned about greater openness and transparency from the government could help out here. You need to secure your nuclear codes, pictures of your golf outing you can probably just release and skip the headache.

You can't give journalists a free pass to do whatever they want, but you can't give the government a free pass to conceal wrongdoing it shouldn't either. Government wrongdoing on a wide scale is a much bigger danger than individual burnt intelligence sources, that's why in my personal view I tip the balance towards shielding the journalists if the government itself can't be trusted.
posted by Drinky Die at 12:26 PM on May 21, 2013


Here is the today's spin:
The United States and its allies were trying to locate a master bomb builder affiliated with Al Qaeda in the Arabian Peninsula, a group that was extremely difficult to penetrate. After considerable effort and danger, an agent was inserted inside the group. Although that agent succeeded in foiling one serious bombing plot against the United States, he was rendered ineffective once his existence was disclosed.
AP came to US government on May 2, asking to print the story.. the mole was pulled out, 17 days earlier, on April 20th when he delivered the undie bomb to the CIA.. The US is now saying that after the mole was fitted for the undiebomb, and given a suicide mission by AQAP, that he was still going to be working as a mole in AQAP after failing to complete his mission?

Emptywheel muses:
“Oh, hi, AQAP gatekeeper” — their story must imagine the mole saying as he returned to AQAP — “I’ve both failed in my mission and somehow lost the bomb you gave me, but based on that would you be willing to let me spend some quality time with even higher-ranking AQAP operatives?”
posted by snaparapans at 4:09 PM on May 21, 2013 [1 favorite]


New York Times Editorial Board: Another Chilling Leak Investigation
With the decision to label a Fox News television reporter a possible “co-conspirator” in a criminal investigation of a news leak, the Obama administration has moved beyond protecting government secrets to threatening fundamental freedoms of the press to gather news.
posted by BobbyVan at 5:20 AM on May 22, 2013 [1 favorite]


AP came to US government on May 2, asking to print the story.. the mole was pulled out, 17 days earlier, on April 20th when he delivered the undie bomb to the CIA.. The US is now saying that after the mole was fitted for the undiebomb, and given a suicide mission by AQAP, that he was still going to be working as a mole in AQAP after failing to complete his mission?

The mole was not "pulled out." The mole was sent on a mission to blow up an airliner by AQAP.

And the plan was, yes, they were going to send him back. That was exactly the plan. He was going to go back in there and say the bomb didn't work give me a bomb that works.

If AP had never reported on this story, we would have gotten the bomb maker. Now what will AP say if the bombmaker succeeds on the next try?
posted by Ironmouth at 9:02 AM on May 22, 2013 [1 favorite]


In the future if a journalist encounters a situation in which they need to conceal the identity of a source using encryption in order to reveal something like that, they should go ahead and do so.

These are not the facts of the case.

Rosen did not conceal the identity of the source. What Rosen did was set up a system to allow the source to switch to a different method of contacting him if he felt the previous way of communication was insecure. In short he went from person receiving classified information (which is not a crime) to person assisting a criminal leaker in hiding the crime. There is a huge difference there. If Rosen had just said E-mail me here, there would have been no problem. As soon as he worked out a code to assist the criminal in committing the crime without detection, he broke the law.

However, I do believe Ron Machen was right in not prosecuting Rosen. But he was going to use Rosen's breaking of the law to get a warrant to find out what Kim had sent him.
posted by Ironmouth at 9:25 AM on May 22, 2013


One final point. If Rosen had only been receiving non-classified documents that only Agency rules prohibited disclosure of, not only would Rosen been OK with setting up the E-mail code, but if Kim had reasonably believed that the information disclosed a matter involving potential threats to public health or safety or a gross waste of resources, the Agency could not have retaliated against him. But the WPA doesn't apply to classified disclosures for good reason.
posted by Ironmouth at 9:30 AM on May 22, 2013


In the future if a journalist encounters a situation in which they need to conceal the identity of a source using encryption in order to reveal something like that, they should go ahead and do so.

These are not the facts of the case.


I never said it was. I really don't have any idea at this point what I can say that will make you believe I am not an opposing lawyer arguing this case with you.
posted by Drinky Die at 9:54 AM on May 22, 2013


In short he went from person receiving classified information (which is not a crime) to person assisting a criminal leaker in hiding the crime.

So national security journalists are basically Maytag repairmen, sitting by the phone waiting for a "whistleblower" to call? This is a silly distinction that effectively criminalizes a great deal of journalism "committed" in order to report effectively on military, security and diplomatic affairs.

Do you think it's also "assisting a criminal leaker" for a journalist to promise to protect the anonymity of a source, even if it means defying a lawful order and going to jail? Because such a promise could be interpreted by a zealous prosecutor as a conspiratorial act.
posted by BobbyVan at 10:04 AM on May 22, 2013 [1 favorite]


And the plan was, yes, they were going to send him back. That was exactly the plan. He was going to go back in there and say the bomb didn't work give me a bomb that works.

Your notion of what the Saudis were going to do with their asset bears no resemblance with what unnamed US and Saudi government sources said about the asset:

Saudi intelligence had hoped that their agent would be able to get information about al-Asiri's whereabouts, but the agent did not meet al-Asiri, one source said.
he and his handler were whisked out of Yemen and the device was handed over to the CIA .

The concern was that the Saudi network which had infiltrated AQAP would be compromised. Nothing from the AP story suggests that there was a mole. What was reported is that a undie bomber was captured with the device... on the other hand Brennan's remarks on May 7th, an hour or so after the AP story broke, clearly indicated CIA involvement, or some inside control...
The AP didn’t, apparently, know, the detail that Brennan’s blabbing led to the reporting of, that the plot was really just a sting led by a British Saudi infiltrator.
posted by snaparapans at 10:21 AM on May 22, 2013 [2 favorites]


So national security journalists are basically Maytag repairmen, sitting by the phone waiting for a "whistleblower" to call? This is a silly distinction that effectively criminalizes a great deal of journalism "committed" in order to report effectively on military, security and diplomatic affairs.

At what point does the law not apply? Where is the part of the law that allows a person to assist a criminal in covering up a criminal act. You can't violate the law and expect this not to happen.

And the press was given leeway. They did not prosecute him. It wasn't in the interest of the U.S. to prosecute the reporter. They didn't do it.

Listen, you can wish the law of accessory and conspiracy was different all you want, but this is how the law reads and how its been interpreted for centuries. Its very simple. You can't help someone commit or hide a crime from the authorities. You are an aider and abettor at that point.

It is actually not that hard to avoid this issue. Just say E-mail me at this address. All he had to do. Hell, if Kim had suggested the code to switch to a new method of contact, Rosen would have been in the clear. But Rosen was plain ol' stupid. Dumb as a rock--used his methods for non-classified leaking and applied them to a leaker. The prosecution used this to get more information on Kim. This doesn't make the entire practice of journalism wrong.

Let me ask another question. If Murdoch-owned journalists had used phone hacking to listen to the messages in voicemail boxes of people would you have said, First Amendment! They can do what they want! Tough shit, wiretapping laws! Because you're asking for the same look the other way on this one too.
posted by Ironmouth at 10:23 AM on May 22, 2013 [2 favorites]


At what point does the law not apply? Where is the part of the law that allows a person to assist a criminal in covering up a criminal act. You can't violate the law and expect this not to happen.

Wait, are you agreeing with my proposition (arguendo) that all absolute promises of source confidentiality in matters dealing with classified information are inherently criminal in nature?

Let me ask another question. If Murdoch-owned journalists had used phone hacking to listen to the messages in voicemail boxes of people would you have said, First Amendment! They can do what they want! Tough shit, wiretapping laws! Because you're asking for the same look the other way on this one too.

That's a bullshit analogy on so many levels.
posted by BobbyVan at 10:36 AM on May 22, 2013


Listen, you can wish the law of accessory and conspiracy was different all you want, but this is how the law reads and how its been interpreted for centuries.

Do you have examples of the cases where journalists have been prosecuted for this we could look at? Again, not a lawyer, but I think they would be an interesting read.

I think people should be less concerned about criminalizing things like phone hacking which are pretty unambiguously wrong or using codes to communicate about a murder conspiracy and more with things like using a flowerpot code to communicate with your source in the FBI that is guiding you on a major scandal with leaks of sensitive information. Even when the details of the cases are not exactly the same as what happened with Rosen, there is some concern with journalists that their methods are going to cross subtle legal lines they may not be fully aware of if they try to protect their sources.

The AP is certainly claiming they are already having a more difficult time getting information from sources.
posted by Drinky Die at 10:44 AM on May 22, 2013


One more thought: leaving aside the reporter's culpability for "aiding/abetting/co-conspiring" re: national security leaks, Ironmouth's logic seems to suggest that it's perfectly appropriate to put any journalist who reports classified information under surveillance in order to identify the leaker.
posted by BobbyVan at 11:47 AM on May 22, 2013


> I think the real question is why is the Obama Administration's attitude towards the free press, in the words of the former chief counsel for the New York Times, "Antediluvian, conservative, backwards. Worse than Nixon"?

Here's a new interview with Goodale: Is Obama Really As Bad As Nixon When It Comes to Targeting the Press?
posted by homunculus at 12:08 PM on May 22, 2013 [1 favorite]


Virtually Everything the Government Did to WikiLeaks is Now Being Done to Mainstream US Reporters
posted by homunculus at 2:34 PM on May 22, 2013 [1 favorite]


Room for Debate: Obama, the Media and National Security
posted by homunculus at 2:36 PM on May 22, 2013


NBC News: Holder OK'd search warrant for Fox News reporter's private emails, official says
Attorney General Eric Holder signed off on a controversial search warrant that identified Fox News reporter James Rosen as a “possible co-conspirator” in violations of the Espionage Act and authorized seizure of his private emails, a law enforcement official told NBC News on Thursday.

The disclosure of the attorney general’s role came as President Barack Obama, in a major speech on his counterterrorism policy, said Holder had agreed to review Justice Department guidelines governing investigations that involve journalists.
posted by BobbyVan at 4:37 PM on May 23, 2013


In other news: Rights Disappearing Down Obama's Drain
posted by homunculus at 7:22 PM on May 23, 2013


Remember Fitzmas?

Remember when liberals stood up for the idea that government officials shouldn't burn intelligence assets? Remember when liberals cheered subpoenas for Judy Miller?

Now its ok for government officials to burn intelligence assets and wrong for the government to try and bring illegal leakers to justice via those very same tools.
posted by Ironmouth at 8:16 AM on May 24, 2013 [1 favorite]


Do you have examples of the cases where journalists have been prosecuted for this we could look at? Again, not a lawyer, but I think they would be an interesting read.

Not a one. Because the government hasn't prosecuted a journalist for this. As I've pointed out many times in this thread, prosecutors were right to exercise discretion and not prosecute.

In fact, they haven't prosecuted any journalists in any of these cases. In fact, no story has ever been prevented from being filed, ever.

Real people are the people getting burned by these leaks. Unlike Plame, whose career was over and was never in any danger, these assets are living, breathing people who we are using to stop attacks on the US or letting us know what a brutal, nuclear-armed dictatorship that threatens regional stability and that is still technically at war with the US is going to do next.
posted by Ironmouth at 8:25 AM on May 24, 2013


One other point.

On Monday, Fox News complained loudly it had only learned of the Rosen warrants on Monday through news reports. Today, Roger Ailes, Fox News president claimed the government was trying to intimidate Fox News. How can you simultaneously be unaware of something and be intimidated by it?
posted by Ironmouth at 8:52 AM on May 24, 2013


Any response to these questions I posed previously, Ironmouth?

1. Is a promise of absolute source confidentiality made to a prospective leaker of classified information inherently criminal? By the DOJ's logic, it could be considered a conspiratorial act meant to increase the likelihood that secret information would be leaked. It would also effectively criminalize investigative national security journalism.

2. Is it appropriate to put any journalist who publishes classified information under surveillance to identify the leaker, including the monitoring of emails and phone calls?

If the answer to both questions is "yes," I think the ability of investigative journalists to obtain information from whistleblowers will have been fatally undermined. And I think you'd have to acknowledge the damage that also causes to our nation.

It's a balancing act to be sure, which is why I don't think these rules should be absolute. The real problem the Administration has now is that seasoned media observers who can't fairly be described as partisan think that the DOJ's actions against the AP and Fox has dramatically upset that balance. My personal opinion is that the ultimate check here isn't going to be a shield law, but rather oversight by the people through their Congressional representatives and ultimately via the ballot box.
posted by BobbyVan at 9:11 AM on May 24, 2013


Is a promise of absolute source confidentiality made to a prospective leaker of classified information inherently criminal?

No it isn't criminal at all. It is unenforceable by the source if it contemplates refusing to testify when ordered by a federal judge because contracts for an illegal purpose are void.

Is it appropriate to put any journalist who publishes classified information under surveillance to identify the leaker, including the monitoring of emails and phone calls?

Is it appropriate for the government to get a search warrant? Yes. Its both legal and ethical. Remember that in the Rosen case the Government proceeded under a special authority to view reporter's work product if they violated the law in obtaining the materials.

If the answer to both questions is "yes," I think the ability of investigative journalists to obtain information from whistleblowers will have been fatally undermined.

A person who reveals classified information is not a 'whistleblower' they are committing a crime. They have no protection under the law. If it was wrong for Karl Rove in 2003 it is wrong for Mr. Kim.

Regarding seasoned media observers who aren't partisan, these observers have a personal interest--worse than being non-partisan, they are personally interested and are taking the position that dovetails with their own personal interest.
posted by Ironmouth at 9:33 AM on May 24, 2013


Also Magistrate Judge Kay is one of the best in the business and no conservative. He's been a magistrate judge for 21 years and was the famous "catch 22" judge that ruled for the Gitmo detainees. Worked as a public defender, in the US attorney's office and clerked for 2 Federal District Court judges. His record is excellent.
posted by Ironmouth at 9:36 AM on May 24, 2013


Jon Stewart Tears Apart Obama, DOJ For Prosecuting Whistleblowers And Potheads But Not Bankers
posted by homunculus at 9:48 AM on May 24, 2013


No it isn't criminal at all. It is unenforceable by the source if it contemplates refusing to testify when ordered by a federal judge because contracts for an illegal purpose are void.

Of course it's not enforceable. But when a reporter goes to jail to protect a source, she earns a reputation that allows her to receive more "leaks" of classified information. I'm not sure what the practical difference is between verbally promising to protect a source -- even if it meant going to jail -- and giving a source a private email channel to convey classified information. Both are intended to provide a level of comfort to the source in order to facilitate the transfer of information. And promising to commit one crime ("I won't give you up, even if it means defying a legal order") in order to facilitate another person's crime ("you should break the law and give me classified information") seems like conspiracy to me. And it's a "conspiracy" that occurs routinely in national security journalism.

Regarding seasoned media observers who aren't partisan, these observers have a personal interest--worse than being non-partisan, they are personally interested and are taking the position that dovetails with their own personal interest.

Can't you acknowledge that there is also a public interest that is served by investigative journalism that, yes, sometimes involves the reporting of classified information? I don't think the government deserves the implicit trust you seem to be suggesting we give it.
posted by BobbyVan at 9:57 AM on May 24, 2013


and giving a source a private email channel to convey classified information.

You can give an e-mail address. You can't create a code for the source to use if he's being watched by law enforcement. You may act in accordance with a code given to you by a source. As soon as you put yourself as the guy in charge of the plan to keep the cops off the trail of an illegal act, you are in trouble.

Rosen really screwed up here, that's why I don't see this as an assault on the press. AP was a standard investigation. Risen was also standard--Fitzgerald did the same thing in the Plame case and the Supreme Court ruled there was no reporter's privilege in 1973.
posted by Ironmouth at 10:05 AM on May 24, 2013


"A person who reveals classified information is not a 'whistleblower' they are committing a crime."

Releasing the Pentagon Papers was in the public interest and was whistleblowing. If that's a crime, the public is worse off for it. Such a simplistic, legalistic view is against the public interest.
posted by klangklangston at 10:36 AM on May 24, 2013 [2 favorites]


"A person who reveals classified information is not a 'whistleblower' they are committing a crime."

Releasing the Pentagon Papers was in the public interest and was whistleblowing. If that's a crime, the public is worse off for it. Such a simplistic, legalistic view is against the public interest
.

That doesn't mean that the person who released them was not breaking the law or could not be prosecuted. If we allowed every release of classified info to whistleblowing then what's the point of having secrets? It cannot be up to the leaker to decide what is right and what is wrong. Otherwise it would be just fine for the Karl Roves and the Scooter Libbys to burn intelligence assets.

And I think the Pentagon Papers are overstated. By the time they were leaked, the war was winding down. Why didn't he release them when they could have done some good?
posted by Ironmouth at 11:20 AM on May 24, 2013


"If we allowed every release of classified info to whistleblowing then what's the point of having secrets?"

This is a weird question, since your position is that every instance of classified information being leaked is criminal and not whistleblowing, but my position isn't therefore that every leak of classified information is whistleblowing.

"And I think the Pentagon Papers are overstated. By the time they were leaked, the war was winding down. Why didn't he release them when they could have done some good?"

And that's just pretty much bullshit. They demonstrated that the government had lied to the public repeatedly about the causes and state of the war — the exact things that the public has a right to know.

Information is consistently over-classified by the government, and it's weird to see you retreat to a jingoistic and simplistic response that assumes we can't legitimately have a public interest in some classified documents. In order for America to function, we have a right to know, and the government has a terrible record of treating, say, Scooter Libby better than Bradley Manning. We can and should be able to distinguish leaks that are in the public interest from ones that aren't, and that public interest should determine the appropriate response.
posted by klangklangston at 11:27 AM on May 24, 2013 [2 favorites]


That doesn't mean that the person who released them was not breaking the law or could not be prosecuted.

I don't think anyone is arguing that people who break the law (and their oaths) shouldn't be prosecuted (at least I'm not).

Leaking is an act of civil disobedience. It's illegal, and leakers knowingly take their chances when they do so. But to place journalists under surveillance is, to borrow a phrase from the President, "a game changer."
posted by BobbyVan at 11:33 AM on May 24, 2013 [1 favorite]


But to place journalists under surveillance is, to borrow a phrase from the President, "a game changer."

its been done time and time again for many years. Fitzgerald did it in the other leak case they put him on, also involving Judy Milller. This is not new by any means.
posted by Ironmouth at 11:49 AM on May 24, 2013


its been done time and time again for many years. Fitzgerald did it in the other leak case they put him on, also involving Judy Milller. This is not new by any means.

-The subpoena for Miller's phone records was narrowly tailored; it wasn't a broad sweep of some 20 general and home phone numbers used by New York Times reporters.
-The New York Times was given an opportunity to review the subpoena beforehand and file a motion in federal court to block it.
- I'm also pretty sure Fitzgerald didn't ask for a warrant to dig through her email account.

All of those differences make the current DOJ's actions extremely novel.
posted by BobbyVan at 11:58 AM on May 24, 2013


-The subpoena for Miller's phone records was narrowly tailored; it wasn't a broad sweep of some 20 general and home phone numbers used by New York Times reporters.
-The New York Times was given an opportunity to review the subpoena beforehand and file a motion in federal court to block it.
- I'm also pretty sure Fitzgerald didn't ask for a warrant to dig through her email account.


Fitzgerald sure as hell made document subpoenas of Judy Miller. Review the subpoena request. Not only does he refer to documents as part of the subpoena, but that teams of FBI agents have been doing extensive computer and forensic document work.

Please tell me your knowledge of how narrowly tailored Miller's phone records were?

More importantly, prosecutors had already narrowed down the potential leakers to a few very high level persons at the get-go of the case because high-profile columnists had published stories. Here 5 relative unknowns were the ones who talked with sources. They have a lot more phone lines they could be using. And if you add up all the lines, Miller, Cooper, Novak, Russert, you start to get a large number as well
posted by Ironmouth at 1:05 PM on May 24, 2013


Remember Fitzmas?

Remember when liberals stood up for the idea that government officials shouldn't burn intelligence assets?


I remember being angry an asset was burned as political retaliation against that asset. Motivations play a role in how you judge these things, but sometimes getting the truth out is done for the right reasons.

Not a one. Because the government hasn't prosecuted a journalist for this.

Ahh, I misinterpreted what you meant about the law being interpreted this way for centuries to mean as it regards journalists. I just assumed that since it's such a clear violation of the law a journalist had been prosecuted in a similar case at some point. That's why I leave this stuff to the lawyers.
posted by Drinky Die at 1:20 PM on May 24, 2013


Fitzgerald sure as hell made document subpoenas of Judy Miller. Review the subpoena request. Not only does he refer to documents as part of the subpoena, but that teams of FBI agents have been doing extensive computer and forensic document work.

Wasn't he after her phone records? After a quick scan I see nothing about Miller's emails or notes, just her testimony. I found the part about the "computer and forensics" but that's awfully vague and says nothing indicating that they had searched *Miller's* documents. For all we know that could be referring to emails from Libby, Rove, etc. that would be archived on government servers.

Please tell me your knowledge of how narrowly tailored Miller's phone records were?

The phone records for two Times reporters were subpoenaed. In the AP case, "the phone lines at four other offices – where 100 reporters worked — were also covered by the subpoenas, Schulz said."

But the most important difference is that in the Plame case, media organizations had the chance to contest those subpoenas in court. The current DOJ kept their phone record and email searches secret from the AP and Fox, and even argued for the ability to "monitor [Rosen's] account for a lengthy period of time."
posted by BobbyVan at 1:26 PM on May 24, 2013


Update: this ruling provides a good summary of what was requested from Judy Miller.
In the meantime, on August 12 and August 14, grand jury subpoenas were issued to Judith Miller, seeking documents and testimony related to conversations between her and a specified government official "occurring from on or about July 6, 2003, to on or about July 13, 2003, ... concerning Valerie Plame Wilson (whether referred to by name or by description as the wife of Ambassador Wilson) or concerning Iraqi efforts to obtain uranium."
That seems appropriately narrow. They weren't asking for generalized access to her email accounts or notebooks.
posted by BobbyVan at 1:31 PM on May 24, 2013


Fox News Host Tells Listeners to Punch Obama Voters 'in the Face'
posted by homunculus at 1:57 PM on May 24, 2013


Fox News Host Tells Listeners to Punch Obama Voters 'in the Face'

Does that qualify her for a drone strike? (not specifically targeted, of course)
While Mr. Mohammad was not directly targeted, he had come under increasing scrutiny by American counterterrorism officials, who said he was involved in recruiting militants for Al Qaeda and the Pakistani Taliban, as well as making videos on YouTube to incite violence against the United States.[emphasis mine]
posted by snaparapans at 3:27 PM on May 24, 2013


That seems appropriately narrow. They weren't asking for generalized access to her email accounts or notebooks.

It says "documents." And they're using electronic forensics. So that seems broad.

In the end, you are disagreeing with a federal judge of 22 years tenure on the bench and an additional 30 years criminal law experience. He knows more about the law in his little finger than you, or I (a lawyer with 10 years litigation experience) knows.
posted by Ironmouth at 5:47 PM on May 24, 2013


Two slices of bread and you can feed us an appeal to authority sandwich.
posted by klangklangston at 6:35 PM on May 24, 2013 [4 favorites]


New York Times: Press Sees Chilling Effect in Justice Dept. Inquiries
Journalists say that chill has already set in. Jeremy Scahill, who writes about national security for The Nation, said that some sources who used to agree to encrypted chats and off-the-record conversations have recently stopped feeling comfortable with these terms.

“At times it seems that being a Luddite may be the safest way to do serious national security reporting in a climate where there appears to be an intensifying war on serious journalism,” Mr. Scahill wrote in an e-mail.

Noah Shachtman, editor of Wired.com’s Danger Room blog, said that sources had told him to stay away in the recent climate of leak prosecutions.

“There’s one source I have to run into ‘by accident’ at some public function who before I could just contact directly,” Mr. Shachtman said.

James Bamford, author of the 1983 best seller “The Puzzle Palace” about the National Security Agency, said these latest leak cases make it increasingly difficult to establish new source relationships and that affects his reporting over all.

“It’s important to get this information out there that doesn’t come through a press release, through the front door of the White House or the Pentagon,” Mr. Bamford said. “Far more information comes through a side door or a back door.”
posted by BobbyVan at 6:58 PM on May 24, 2013


In the end, you are disagreeing with a federal judge of 22 years tenure on the bench and an additional 30 years criminal law experience. He knows more about the law in his little finger than you, or I (a lawyer with 10 years litigation experience) knows.

Obey.
posted by BobbyVan at 7:10 PM on May 24, 2013


Prominent Journalists File Suit to Lift Veil of Secrecy Over Manning Trial: Last chance to free case from heavy-handed military censorship, say critics of proceedings
posted by homunculus at 9:17 PM on May 24, 2013


It says "documents."

Very specific documents, seems to me...
posted by MoTLD at 1:45 AM on May 25, 2013


Ironmouth, when yer getting crushed in an argument by a clear conservative troll such as BobbyVan, it's time to step back, reevaluate fundamentals, and figger out WTF the point of all the effort is.

Transparency = Good, Secrecy = Bad.
posted by notyou at 2:39 AM on May 25, 2013


AP CEO Says DOJ Seized Records For 'Thousands And Thousands' Of Phone Calls: Staffer
NEW YORK -- Associated Press president and chief executive Gary Pruitt told staff at a Wednesday town hall meeting that the phone records obtained by the government included "thousands and thousands" of calls in and out of the news organization, according to a staffer who attended.

The AP revealed on May 13 that the Justice Department had seized records for 20 separate phone lines over a two-month period as part of a leak investigation, but has not mentioned how many calls may have been affected.

Pruitt said Wednesday that the Obama administration acted as "judge, jury and executioner" in secretly obtaining the news organization's records, a criticism he also leveled in a recent appearance on CBS' "Face the Nation."

During the town hall, Pruitt reiterated that the AP did not report on a CIA-thwarted terrorist plot in May 2012 out of national security concerns until sources indicated the Obama administration was going to announce it publicly.
posted by BobbyVan at 11:38 AM on May 29, 2013 [1 favorite]


Holder Tells Intelligence Community Lawyers That He Wants Crackdown On Media Sources To Continue And Remain “Aggressive”
posted by homunculus at 3:52 PM on June 7, 2013 [1 favorite]


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