There’s a Place for Resolving Disputes, and the Administration Chose Not To Use It

As I was writing my flurry of posts on the AP call record seizure yesterday, former National Security Council Spokesperson Tommy Vietor and I were chatting about the facts of the case on Twitter. He disputes two of the AP’s claims: that they held the story as long as the Administration wanted them to, and that the White House had planned an announcement.

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Now, as I have said in the past, I’m somewhat skeptical of the White House’s claims, given that their story changed as the story was blowing up. Furthermore, the White House had done a big dog-and-pony show on a similar operation — the thwarting of the Toner Cartridge plot in 2010, which was also tipped by a Saudi infiltrator. So it is reasonable to believe they planned to do another one in 2012.

That said, note that the AP’s latest version of this is rather vague about whom they were discussing the story with, referring only to “federal government officials,” whereas previously they had referred to “White House and CIA” requests.

So there may well be some confusion about what happened, or it may be that David Petraeus’ CIA was planning a dog-and-pony show that the White House didn’t know about. No one seems to dispute, however, that the AP did consult with the White House and CIA, and did hold the story long enough to allow the government to kill Fahd al-Quso, all of which the Administration seems to have forgotten.

In short, behind the broad call record grab, there’s a legitimate dispute about key details regarding how extensively the AP ceded to White House wishes before publishing a story the Attorney General now claims was the worst leak ever.

But there’s a place where people go to resolve such disputes. It’s called a court.

And as this great piece by the New Yorker’s counsel, Lynn Oberlander on the issue notes, one of the worst parts of the way DOJ seized the AP records is that it prevented the AP from challenging the subpoena — and the details that are now being disputed — in court.

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

I obviously don’t know better than Oberlander what would have happened. But I do suspect the subpoena would have been — at a minimum –sharply curtailed so as to shield the records of the 94 journalists whose contacts got sucked up along with the 6 journalists who worked on the story.

Moreover, I think these underlying disputed facts — as well as the evidence that the gripe about the AP story (as opposed to the later stories that exposed MI5’s role in the plot) has everything to do with the AP scooping the White House — may well have led a judge to throw out the entire subpoena.

If the AP had been able to present proof, after all, that the White House (or even the CIA) had told them the story wouldn’t damage national security, then it would have had a very compelling argument that the public interest in finding out their source is less urgent than the damage this subpoena would do to the free press.

So I don’t know what would have happened. But I do know it is a real dispute that may well have a significant impact on the subpoena.

And that’s why we have courts, after all, to review competing claims.

Of course, the Obama Administration has an extensive history of choosing not to use the courts as an opportunity to present their case. Most importantly (and intimately connected to this story), the government has chosen not to present their case against Anwar al-Awlaki on four different occasions: the Nasser al-Awlaki suit, the Umar Farouk Abdulmutallab trial, the ACLU/NYT FOIAs, and now the wrongful death suit. This serial refusal to try to prove the claims they make about their counterterrorism efforts in Yemen doesn’t suggest they’re very confident that the facts are on their side.

Which may well be why DOJ chose to just go seize the phone contacts rather than trusting their claims to a judge.

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.

27 replies
  1. peasantparty says:

    In other words, Vietor: “Trust me, I’m a Government Agent and here to help you”.

    I’m with you, Marcy. There are simply too many steps left out.

    I can’t help but bring up the Manning trial case. The DOJ has played all kinds of games with the military in order to quash his Defense. The one thing they are hiding and running around the world is the proof they need to make the charges they have stick. So in order to save time, Manning plead guilty to “SOME” of the charges. Now the govt has to prove the others while refusing his defense most of their star witnesses! Yet, they get to have very serious prosecution witnesses on behalf of the govt testify in secret!

    Compare these govt moves to every damn issue we face and see how our DOJ is one of the most crooked, justice deprived agencies in the US!

  2. P J Evans says:

    Or ‘Plan B’, where the administration is fighting Judge Korman’s ruling that the FDA was correct and that it be available over-the-counter to females as young as 12.

    I don’t know what this administration thinks it’s doing, but they seem to fight hard only when challenged to show why they went against laws and regulations, never when the fight would be to the benefit of the rest of the country.

  3. Hmmm says:

    I wouldn’t assume that awareness of the specific leak necessarily started with the subpoena. When you have NSLs and hoovering available as tools, you only go the subpoena route if your goal is to prosecute, or to use threat of prosecution for pressure against journalists cooperating with USG leakers. Did DOJ first learn about the leak from intel sources, who discovered it (or verified humint) via hoovering, and then only then went for the phone records subpoena? I agree with EW’s point that AP should have had a day in court to contest the subpoena, which would have potentially blunted the pressure being brought to bear, but with Holder’s high drama I can’t imagine the big guns haven’t already been deployed. So subpoena as cover for the actual prior source of the fact of the specific leak? In that (wholly speculative) case, DOJ couldn’t have tolerated the possibility of AP prevailing against the subpoena, so going for secret subpoena would have been consistent with the need. (By the way I’m surprised at the general dearth of commentary on the ex-FBI guy’s verification after Boston of USG hoovering of all electronic communication.)

  4. peasantparty says:

    @Hmmm: Same here. Also, re: Boston; I’ve got some real problems with the guy’s uncle. Nothing clicks well with me on that issue.

  5. peasantparty says:

    I think if we had actual notes on the dates, time, and reports that these AP reports were swept all things would be much clearer.

  6. peasantparty says:

    I think if we had actual notes on the dates, time, and reports that these AP reports were swept all things would be much clearer.

  7. peasantparty says:

    @peasantparty: Actually, the more I think about this the more I am smiling.

    Marcy has it! EW has all this stuff documented with drone kills of Yemen. WHOOP!

    EW has done another HUGE SCOOP-ZOOM!

  8. zot23 says:

    I’m a liberal and have voted Democrat in the last XX elections, but Obama and the DOJ should be nailed to the wall over this scandal. If Republicans want to impeach him over this, I say more power to them.

  9. thatvisionthing says:

    former National Security Council Spokesperson Tommy Vietor

    Same question I had back when Vietor and Marcy were on the HuffPost Live segment — if he’s identified as a former spokesperson, why is speaking for them publicly as if he were a present spokesperson? Cannot figure out why he was on HuffPost, and why he is tweeting on this news apparently authoritatively. Leak, valve? Perhaps another version of unaccountable, anonymous sourcing that Glenn Greenwald despises in news stories?

    http://www.emptywheel.net/2013/03/13/tommy-vietor-and-i-exchange-on-the-record-non-dickish-comments/

  10. lysias says:

    Administration feeling the heat? The Hill: White House asks Schumer to reintroduce media shield law:

    The White House on Wednesday asked Sen. Charles Schumer (D-N.Y.) to reintroduce a media shield law amid criticism of the Department of Justice’s subpoena of Associated Press phone records.

    Schumer’s bill would allow media organizations to challenge subpoenas of phone records and offer legal protections for protecting confidential sources.

    Hopefully, this scandal will make the war on whistleblowers a political issue, finally.

  11. lysias says:

    If these drone strikes are all approved in the White House (and even allegedly by the President himself,) does that mean the strike on Awlaki’s 16-year-old son was approved by the White House/Obama?

  12. sk says:

    @Bob In Portland:

    What I like about this is that the WH helped kill the bill the last time around. The WH does not need a Congressional solution, worst form of passing the buck.

  13. thatvisionthing says:

    @lysias: Nixon asks Congress to introduce media shield law.

    Just thinking of what the wording will be. See Jonathan Turley:

    http://www.usatoday.com/story/opinion/2013/03/25/nixon-has-won-watergate/2019443/

    From unilateral military actions to warrantless surveillance that were key parts of the basis for Nixon’s impending impeachment, the painful fact is that Barack Obama is the president that Nixon always wanted to be.

    Isn’t the Constitution clear enough?

  14. orionATL says:

    @thatvisionthing:

    wouldl you like to know why?

    i’ll tell you why.

    because emptywheel’s reporting is among the most accurate, persistent, and insightful- hence potentially damaging – of any of the reporters dealing with political/legal washington.

    put differently, they’ve assigned vietor to guard wheeler one-on-one for the rest of the games.

  15. Peterr says:

    People, people, people . . .

    Had the DOJ gone straight to the AP, allowing them to fight this in court, the DOJ would have said those two magic words to the judge — “State Secrets” — and had the APs motions dismissed. See “Al-Haramain“, among other cases.

    Thus, by bypassing the obviously unnecessary court proceedings, DOJ was simply trying to save the hardworking taxpayers of America a little money, in this time of belt tightening and austerity.

    Show them a little gratitude, please.

    /s

  16. harpie says:

    @lysias: Carney [from the article]

    “The White House has been in contact with Sen. Schumer and we are glad to see that legislation will be reintroduced because he believes strongly we need to provide protections to the media,”

    Exactly right! That’s why they did the right thing in this case…oh wait…

    added:
    Here’s a pdf of S.448, The Free Flow of Information” bill of 2009

  17. Peterr says:

    @thatvisionthing:

    Why? It was either Tommy or the unnamed provider of anonymous dickish comments who replaced him. Given that the fight with the AP is about anonymous comments provided by a government source, sending out an anonymous government source to comment on them might send a mixed message.

    Besides, as the post you linked to notes, Tommy is very happy to be able to provide dickish comments on the record now.

  18. What Constitution says:

    Well, yes, there is a mechanism quaintly thought of as providing a forum for resolution of disputes and, of course, it is true that some would call that mechanism a “court”. But really, aren’t we past wondering whether the Obama administration voluntarily would use — or at least invite others to use — such a mechanism? Wouldn’t that potentially disclose some “state secrets”? And if the Obama administration was to invoke the aid of courts in the first instance, wouldn’t that imply Obama administration acquiescence in “courts” as occupying [oops, did I say “occupy”?] a position of value and respect, which others might then be encouraged to invoke? And if the Obama administration was to agree that it had standing to submit a dispute for judicial resolution, others might be considered similarly so entitled?

    No chance of risking any of that happening. No wonder they just dispensed with all that here. They told the court they wanted a subpoena. That’s that, right? The rest would only be interfering with the President’s Article II powers, right?

  19. thatvisionthing says:

    @What Constitution: Of course! A roach motel! All disputes to be resolved by “court” or “authorized court substitute”, enter there and don’t come out. Hands clean, gloves off. Neat.

  20. harpie says:

    @The Opium Wars:

    […] Brennan strongly denied he had leaked any sensitive or secret information to the media. Sources familiar with Brennan’s conference call with the TV pundits said at least two of the former officials who were on the call with Brennan had not been contacted by leak investigators.

  21. orionATL says:

    so who gov gon roll out?

    i thought the score was:

    -b’ghazi plot leader captured in egypt

    – b’ghazi plot leader killed in libya

    – b’ghazi plot leader killed in turkey while headed for syria

    how many more “leaders” can our vaunted security forces reveal to us?

    is this the egyptian captive?

    given the fbi’s “soft interrogation” treatment?

    that would be interesting – and make cheney even more nervous than he already is.

  22. PG says:

    @zot23: Gee, over-react much?

    Let’s see, Reagan….Iran/Contra. No impeachment. Not even the talk of one.

    George W Bush….many people think he, and Dick Cheney, are guilty of war crimes.

    But let’s have the last 2 Democratic presidents impeached. One for lying about a blow job, and the other for….continuing a bad practice that was created by a Republican Administration?

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