Absolutely outrageous: Big Brother is watching

The Justice Department's abuse of AP phone records puts the media and truth-tellers on notice: We see everything

Published May 15, 2013 12:00AM (EDT)

White House Press Secretary Jay Carney, May 14, 2013.    (Reuters/Kevin Lamarque)
White House Press Secretary Jay Carney, May 14, 2013. (Reuters/Kevin Lamarque)

Over a six-week period last April and May, a flood of new information on our counterterrorism programs came out: a John Brennan speech and high-profile stories that claimed the drone killing program was narrowly targeted; stories revealing that Brennan had recently changed that process and adopted the use of strikes targeted at patterns, not known individuals, in Yemen; and news of a thwarted al-Qaida in the Arabian Peninsula operation that seemed to indicate AQAP remained a threat to the U.S. eight months after the U.S. had killed Yemeni-American cleric Anwar al-Awlaki. It was a frenzy of administration-serving leaks and counter-leaks.

Yet it’s just that last story, or at least the AP reporting of it, that elicited an unusually broad DOJ seizure of records revealing journalists’ sources -- the call records from 20 AP phone lines, across four different offices and at least two reporters’ own homes. It would set off a chain of events amounting to a breathtaking assault on freedom of press by a Justice Department with a lot of explaining to do.

The AP first learned about the seizure when its general counsel received notice from Washington, D.C.’s U.S. attorney last Friday.

On May 7 of last year, AP reported that the CIA had thwarted an attempted underwear bombing attack on the U.S., similar to the unsuccessful attack launched on Christmas Day 2009. As part of that report, it noted the plot was originally intended to go off around the May 1 anniversary of the killing of Osama bin Laden. “The CIA has thwarted a plot by al-Qaida's affiliate in Yemen to destroy a U.S.-bound airliner using a bomb with a new design around the one-year anniversary of the killing of Osama bin Laden,” the AP reported.

The story also noted that after ceding to a White House request to hold the story for some days, the AP had decided to publish in advance of a planned White House announcement about the thwarted attack. “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 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.”

Thus far, the story was about the AP insisting on scooping the White House rollout of a story already planned for public announcement.

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

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

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

The GOP, which since the Osama bin Laden raid had accused the White House of leaking sensitive details for political gain, called for an investigation of this and other leaks. New York Rep. Peter King — a Republican who had long criticized the AP’s Pulitzer Prize-winning coverage of the New York Police Department’s spying on Muslims — noted that “the lives of a unique intelligence source and others may have been jeopardized,” in his letter to FBI director Robert Mueller requesting an investigation.

Yet according to Brennan’s testimony in his confirmation hearing, in spite of the fact that he was the source of the information that led to the exposure of the infiltrator, he is not a target of the investigation. “As I said, I conducted interviews with [FBI]. And, you know, I am a witness in that, as many other people are. And as you know, there's witness and subject and target. I'm not a subject. I'm not a target. I am a witness.”

By contrast, the AP’s sources — who may not have revealed anything beyond what the White House planned to roll out the next day — do appear to be targets of the investigation.

Not only did the Department of Justice obtain — when, exactly, remains unclear — the call records from 20 AP phone lines, it did so in particularly abusive fashion.

DOJ’s own guidelines lay out certain limits on when it can obtain journalist call records using a subpoena. The Justice Department must give notice — and an opportunity to negotiate access — to journalists before it obtains call data unless it will “pose a substantial threat to the integrity of the investigation.” Normally, that is only claimed when the existence of an investigation is secret, but this is one of the most public leak investigations of the last 10 years. In addition, any “subpoena should be as narrowly drawn as possible.” Yet DOJ accessed the communication records of significant numbers of journalists not even involved in the story.

In a response to the AP’s complaints about the seizure, Deputy Attorney General James Cole — who is overseeing this investigation because Attorney General Eric Holder recused himself — claimed that the subpoena was adequately tailored. “[T]he subpoenas were limited in both time and scope,” Cole claimed. “[F]or each of the phone numbers referenced in our May 10, 2013, letter, there was a basis to believe the numbers were associated with AP personnel involved in the reporting of classified information.” This, of course, ignores that these numbers were also associated with a significant number of AP reporters who had nothing to do with the story. Cole also claimed the subpoena was adequately limited in time. “Indeed, although the records do span two months, as we indicated to you last week, they cover only a portion of that two-month period.”

But Cole offered no explanation for why DOJ hadn’t — as required -- approached AP to negotiate this seizure of records. Of course, that would have permitted AP to fight this subpoena in court, where DOJ would have been forced to prove that its alternative efforts to conduct this investigation and its scope was proper. Moreover, DOJ would have had to prove that its interest in exposing the leakers who permitted the AP to scoop the White House’s own planned announcement outweighed the chill on press freedom that this subpoena represents.

In a press conference Tuesday, Eric Holder claimed (rather inappropriately, given that he has recused himself from this investigation) that this leak was “among, if not the most serious, it is within the top two or three most serious leaks I’ve ever seen” in his 37-year career. “It put the American people at risk, and that is not hyperbole,” he said. If so, then why did the White House only ask the AP to hold off on publication, rather than not publish at all? (As the scandal tied to this leak grew, White House claims about discussions with the AP changed to assert they had never planned to hold a press conference; but in a very similar alleged AQAP plot in 2010 tipped by a Saudi informant whose identity got exposed, they did.)

More important, if this leak was so serious, then why was Brennan not only not fired, but promoted to lead the CIA, when he, by his own sworn testimony, had a role in exposing some of the most sensitive details of that leak?

Holder may be fearmongering to justify DOJ’s breathtaking intrusion on press freedom.

But all that distracts from the underlying fact. The White House got angry at AP for preempting a planned announcement of this plot, at a time when the White House was leaking classified information profusely on closely related issues. And that has led not to the prosecution of John Brennan for helping to expose that the plot was only ever a Saudi setup in the first place, but instead to the exposure of over six journalists’ sources.

By Marcy Wheeler

Marcy Wheeler writes at EmptyWheel.net and is the author of "Anatomy of Deceit."

MORE FROM Marcy Wheeler

Related Topics ------------------------------------------

Al Qaeda Associated Press Cia Editor's Picks Eric Holder Jay Carney John Brennan Terrorism