The Anonymous DOJ Handmaiden of Political Whim

Adam Liptak has an odd story on the increasing use of technology to pursue leaks.

I find it odd for two reasons. In spite of the fact that he nods to technology and has Lucy Dalglish relate the same story I described here, in which a national security representative told her “they know” who journalists are talking to:

“I was told in a rather cocky manner” by a national security representative, Ms. Dalglish recalled, that “the Risen subpoena is one of the last you’ll see.”

She continued, paraphrasing the official: “We don’t need to ask who you’re talking to. We know.”

He doesn’t talk about the means to get that information–neither the internet based collection methods nor the FBI’s new Domestic Investigation and Operations Guide rules which allow the government to get journalist call records without a subpoena in some cases. It seems important to explain that the new circumstances involve not just technology, but also a unilateral change in legal policy with regards to the communications of  journalists (albeit one that mirrors a similar change for all other Americans).

The government can prosecute more leaks now because the technology has enabled them to change the rules on journalists without, thus far, any significant outcry.

The other funny part of the Liptak story is this anonymous lie from a DOJ official explaining DOJ’s selective enforcement of leaks.

“The Justice Department has always taken seriously cases in which government employees and contractors entrusted with classified information are suspected of willfully disclosing such classified information to those not entitled to it,” a department official explained. “As a general matter, prosecutions of those who leaked classified information to reporters have been rare, due, in part, to the inherent challenges involved in identifying the person responsible for the illegal disclosure and in compiling the evidence necessary to prove it beyond a reasonable doubt.”

This statement is, of course, utter horseshit. Take the Nicholas Schmidle story revealing key, top secret details of the Osama bin Laden raid, or the example of John Brennan speaking on the record about a topic that the government has told courts is a state secret. Those sources are pretty easy to find. The sources involved are pretty clearly John Brennan, James Cartwright, Ben Rhodes, Marshall Webb and … John Brennan again. All those men have Top Secret clearances which would make it easy for the government to get their call records. From there, the government would have the same kind of evidence they’ve got tying Jeffrey Sterling to James Risen.

Only, the government is not going to prosecute those violations of secrecy. Not because they don’t have the evidence or couldn’t prove their case. But because these leaks serve a political purpose that people high up enough in the Administration has apparently deemed more valuable than all the claims they make–occasionally with good reason–about the importance of keeping national security information secret.

And that, I suspect, is why this DOJ official has said this anonymously. Because it’s the other part of the equation, the one that undermines DOJ’s claim to be enforcing rule of law, that gets really embarrassing. DOJ won’t or can’t describe its full approach to leaks–which is to pursue those it can that are deemed embarrassing by the political powers that be, but to ignore those that are deemed useful.

DOJ needs to keep this a secret, because admitting it would be to admit they are now the handmaiden of not the law, but political whim.

Political whim, backed by intrusive new technologies and unilateral rule changes about the deference shown to journalists.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

8 replies
  1. Bob Schacht says:

    “…suspected of willfully disclosing such classified information to those not entitled to it…”

    That word “entitled” carries a lot of freight. As in the classification of most “secret” documents, the government is both judge and jury on what is secret and what isn’t. And it can change anything in either direction. This is fundamentally undemocratic, and is one of the reasons why the Mannings of this world are an asset to democracy.

    Bob in AZ

  2. chetnolian says:

    @Bob Schacht: But we need to remember that probably 99% of what is classified is about planes, ships, tanks, missiles, whatever, and the justification of its classification is, except on the most fundamentalist approach, not really contentious. The issues are around the use by Governments of the classification system to cover policy matters.

  3. PeasantParty says:

    The quote you state is utter horseshit, is in my opinion a much larger pile. I would compare it to Hippo.

    The US has passed a marker and that is going to lead to other means of information sharing. This puts investigators and true journalists in a position of having to do even more clandestine work. I know it is meant to keep them from even attempting to educate the public. I just don’t think it is going prevent real reporting from those that take their profession and the need of an educated citizenry from doing what they feel is right.

  4. joanneleon says:

    So are journalists and bloggers enemy combatants yet?

    What gives them the right to the surveillance of journalists?


  5. PeasantParty says:

    @joanneleon: Any citizen that is interested in the Government or Military Operations is. The war reporting is and has been cut off and when others tried they got shot just like an enemy.

  6. emptywheel says:

    @Jeff Kaye: Well, it would have been nice for journalists to note the Lucy Dalglish quote when I first reported, weeks before Liptak! Along with the “how.”

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