A big part of Stephen Preston’s response to Mark Udall’s questions about whether he supports adequate disclosure to Congress consists of insisting the CIA Directors he worked with — Leon Panetta, David Petraeus, presumably Mike Morell as Acting Director, and John Brennan — have supported full disclosure to Congress.
Doing a better job of congressional notification and ensuring the proper provision of information concerning covert action and other intelligence activities to the Intelligence Committees has been a top priority of the Directors under which I have served, starting with Director Panetta, and one that I have fully supported.
What we regard as proper practice today is driven by faithful application of the National Security Act of 1947. It is also informed by the very high priority the Directors under which I have served have placed on doing a better job of congressional notification and ensuring the proper provision of information concerning covert action and other intelligence activities to the Intelligence Committees. To repeat, I have fully supported these efforts and, if confirmed, will be fully committed to such efforts with respect to the Armed Services Committees.
While it may or may not be true that the Directors under whom Preston has served have not engaged in the kind of manipulative briefings that characterized the torture program, every time I read these assurances from Preston I remembered what Barb Mikulski said at John Brennan’s confirmation hearing.
Now, I want to get to the job of the CIA director. I’m going to be blunt — and this would be no surprise to you, sir.
But I’ve been on this committee for more than 10 years. And with the exception of Mr. Panetta, I feel I’ve been jerked around by every CIA director.
I’ve either been misled, misrepresented, had to pull information out, often at the most minimal kind of way, from Tenet, with his little aluminum rods to tell us that we had weapons of mass destruction in Iraq to Porter Goss, not worth coming.
You know the problems we’ve had with torture. The chair has spoken eloquently about it all the way.
And, quite frankly, during those questions, they were evaded, they were distorted, et cetera.
While she didn’t name him as she did Tenet and Goss, neither did she except David Petraeus, like she did Leon Panetta.
This would seem to suggest that Mikulski has a very different understanding of Petraeus’ commitment to briefing Congress than Preston claims to have.
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Lethal aid. Nonlethal aid. Moderate groups. Radical Islamist groups. Light weapons. Anti-aircraft weapons. We have been barraged with a dizzying array of descriptions of what is going on in Syria and to what extent the US is helping which groups.
I have been harping recently on the issue of why the Obama administration is going to great lengths to change the date and time of entry for the first CIA-trained and armed death squads the US sent into Syria. Despite public evidence the first group entered as at least 300 militants on August 17, both Barack Obama and the CIA have “leaked” that the first group of 50 entered or was armed in the last week of August or the first week of September, after the disputed chemical weapons attack on August 21. But keep in mind that these groups are the small death squads built on the US model of the CIA and JSOC troops “training” already organized militia groups that often are organized around ethnic or religious issues. These groups were at the heart of Petraeus’ vaunted COIN strategy in Iraq and Afghanistan. In those countries, they were brutal groups that were known for night raids and the ruthless killing, torture and disappearing of innocent civilians. It’s hard to imagine that the CIA and JSOC have changed their “winning” syllabus for this training, so look for more of these types of atrocities.
Those small death squads being trained by the CIA and JSOC are separate from the larger Free Syrian Army headed by General Salim Idris, who was a General in Assad’s military until his defection in the summer of 2012. A big deal has been made about the fact that the US has not been providing direct lethal aid to the FSA. In fact, back on March 1, Idris took to the pages of Foreign Policy to make his plea for lethal aid directly:
The United States has repeatedly expressed its reluctance to provide Syria’s armed opposition with weapons, due to the fear that they will fall into the hands of extremists groups. At this week’s meeting in Rome, the U.S. government promised only to provide non-lethal support. It’s time for Washington and the international community to reconsider, because the only way to prevent the rise of warlords and extremist groups is to support the organized Syrian opposition in professionalizing the armed revolution.
But look, Idris promised us that his team has things under control and nothing could go wrong with us giving him lethal aid:
In fact, the Syrian Coalition, an internationally recognized umbrella group of opposition parties, has made great strides to account for all advanced weaponry under the rebels’ control. It now registers and traces all such arms to ensure that only trained officers under the command ever receive and use them.
The problem, though, is that Idris’ claim in March that the US wasn’t helping his group with lethal aid was bullshit. As CTuttle reminded us in a comment in my post yesterday, the New York Times discussed how the CIA has been “assisting” the flow of lethal aid to the FSA and other groups for over a year. The Times article was published a little over three weeks after Idris’ plea, but documents CIA involvement in weapons shipments for a long time before that point: Continue reading
Even while Barack Obama and John Kerry are busily lobbying for a positive vote in Congress for their Not-War in Syria, it appears the Defense Department isn’t waiting for a pesky thing like Congressional approval or even the official start (as opposed to already ongoing but covert) of US actions to begin their usual process of mission creep that is undoubtedly to be followed by cries of “Just six more months and victory will be ours!”. The mission creep on targeting threatens the propaganda push that so far has been centered on selling the action as limited. We have New York Times articles this morning stating that Israel goes along with the idea of limited strikes but definitely doesn’t want to go all the way to regime change where radical Sunni groups might seize power, while at the same time we have the Pentagon claiming they’ve been tasked with expanding the number of targets for the strike. From the latter:
President Obama has directed the Pentagon to develop an expanded list of potential targets in Syria in response to intelligence suggesting that the government of President Bashar al-Assad has been moving troops and equipment used to employ chemical weapons while Congress debates whether to authorize military action.
Mr. Obama, officials said, is now determined to put more emphasis on the “degrade” part of what the administration has said is the goal of a military strike against Syria — to “deter and degrade” Mr. Assad’s ability to use chemical weapons. That means expanding beyond the 50 or so major sites that were part of the original target list developed with French forces before Mr. Obama delayed action on Saturday to seek Congressional approval of his plan.
For the first time, the administration is talking about using American and French aircraft to conduct strikes on specific targets, in addition to ship-launched Tomahawk cruise missiles. There is a renewed push to get other NATO forces involved.
See? It’s the fault of all those dirty hippies insisting on following an old piece of paper and forcing the President to get a permission slip from Congress before taking action. That delay is why we have to expand the number of targets.
We are left to ponder just how it will be possible to magically target and kill Syrian forces tasked with moving chemical weapons around without actually hitting those weapons–which the forces are in the process of hiding. What could possibly go wrong here?
But I want to focus more fully on this AP article. Marcy had just read it when she sent out this tweet:
Press coverage from the Chuck-Hagel-Says-It’s-Covert training that HAS BEEN GOING ON in Jordan being given real time machine treatment.
— emptywheel (@emptywheel) September 6, 2013
That, along with the title: “US officials: US considers training Syria rebels”, suggests that the article is an expansion of the effort I outlined earlier in the week, where Barack Obama is trying to change both the date and the size of the first CIA-trained death squads to enter Syria, most likely because they are somehow tied up either as targets of the chemical weapons attack or as perpetrators of a false flag operation.
Diving into the article, though, we see that this is about adding to the death squad training by expanding into a much larger operation where US troops are directly involved in training a large force (for the Afghanistan analogy, this proposal is to move beyond the CIA training Afghan Local Police–the militias who become death squads–for our military to train the actual Afghan National Army, which is about ten times larger): Continue reading
Greg Miller reports in the Washington Post that the CIA will be closing several bases in Afghanistan as US military forces are withdrawn from the country. I’ve been obsessing lately about US death squads operated primarily by the CIA but also affiliated with Special Operations forces and their bases. These death squads have been an integral part of the vaunted David Petraeus COIN strategy in both Iraq and Afghanistan (and rest on the heritage of death squads funded by the US in Latin America and those run by the US in Vietnam).
Miller’s article joins a growing trend toward public acknowledgement of the paramilitary activities the CIA has carried out in Afghanistan:
The CIA has begun closing clandestine bases in Afghanistan, marking the start of a drawdown from a region that transformed the agency from an intelligence service struggling to emerge from the Cold War to a counterterrorism force with its own prisons, paramilitary teams and armed Predator drones.
Think for just a moment about what is being admitted here. These are clandestine bases that are being closed. Those clandestine bases had their own prisons and paramilitary teams. Remember all the US denials regarding the disappearance of innocent civilians and their torture at secret prisons in both Iraq and Afghanistan? Those denials get a lot less believable with this matter-of-fact admission that clandestine bases with their own prisons and paramilitary teams are being closed. You can bet that those secret prisons did not sit empty and the CIA paramilitary teams did not sit around all day just playing cards at their secret bases.
The entire article is worthy of reading for the number of confirmations it has on CIA activities in Afghanistan. However, lest we think that Mr. Moral Rectitude is going to be cutting back on his war crime activities in Afghanistan, we have this near the end of the article:
This year, President Obama approved new counterterrorism guidelines that call for the military to take on a larger role in targeted killing operations, reducing the involvement of the CIA.
But the guidelines included carve-outs that gave the agency wide latitude to continue armed Predator flights across the border and did not ban a controversial practice known as “signature strikes,” in which the agency can launch missiles at targets based on patterns of suspicious behavior without knowing the identities of those who would be killed.
John Brennan will hang on to his “latitude” to continue signature strikes. It seems likely that he also will keep his death squads active in Afghanistan, but they will be operating out of fewer bases. International laws and treaties are just immaterial if you have enough moral rectitude.
Oh, and as a postscript, the article does confirm affiliation of
CIA death squads CIA paramilitary forces with military bases (just as has been at the center of the controversy surrounding the Nerkh base in Maidan Wardak Province, where Karzai expelled US Special Forces):
Even so, a full withdrawal of U.S. troops would probably trigger a deeper retrenchment by the CIA, which has relied on U.S. and allied military installations across the country to serve as bases for agency operatives and cover for their spying operations.
It appears that Brennan and the Obama administration just don’t care any more about maintaining secrecy on their war crimes. After all, who is going to stop them?
While the nation grieves over the senseless death of Trayvon Martin and the missed opportunity to hold his killer responsible for that death, there is another senseless death of an American teenager of color where an attempt is continuing, after previous failures, to hold accountable those responsible for the lawless way in which this life was arbitrarily ended.
Exactly one year ago today, the American Civil Liberties Union and the Center for Constitutional Rights filed a lawsuit (pdf) on behalf of Nasser al-Awlaki (father of Anwar al-Awlaki and grandfather of Abdulrahman al-Awlaki) and Sarah Khan (wife of Samir Khan). The defendants in the case are former Defense Secretary Leon Panetta, Commander of Special Operations Command William McRaven, Commander of Joint Special Operations Command Joseph Votel and former CIA Head David Petraeus. The complaint cites violation of the Fourth and Fifth Amendments as well as violation of the Bill of Attainder Clause in the targeted killings of Anwar al-Awlaki, Abdulrahaman al-Awlaki and Samir Khan. Oral arguments on the suit begin tomorrow.
Given what is known about the role of Barack Obama in these killings and his personal authorization of the “kill list” in his Terror Tuesday meetings, I find it perplexing that he is not also a defendant in this case.
The complaint seeks damages in an amount to be determined at the trial and any other relief the court deems just and proper.
Coincident with the filing of the complaint in the United States District Court for the District of Columbia a year ago, the video above was released. Today, an op-ed by Nasser al-Awlaki was published in the New York Times, helping to focus attention on tomorrow’s opening arguments. The video and op-ed are truly gut-wrenching.
From the op-ed:
I LEARNED that my 16-year-old grandson, Abdulrahman — a United States citizen — had been killed by an American drone strike from news reports the morning after he died.
The missile killed him, his teenage cousin and at least five other civilians on Oct. 14, 2011, while the boys were eating dinner at an open-air restaurant in southern Yemen.
The grandfather describes his anguish as he seeks answers to the question of why his grandson was killed:
Nearly two years later, I still have no answers. The United States government has refused to explain why Abdulrahman was killed. It was not until May of this year that the Obama administration, in a supposed effort to be more transparent, publicly acknowledged what the world already knew — that it was responsible for his death.
Nasser al-Awlaki describes the huge impact an education in the United States made on his life and how he put that education to use when he returned to Yemen. More importantly, he puts the actions of the United States in killing his son and grandson significantly at odds with the values of the United States when he was a student here:
A country that believes it does not even need to answer for killing its own is not the America I once knew. From 1966 to 1977, I fulfilled a childhood dream and studied in the United States as a Fulbright scholar, earning my doctorate and then working as a researcher and assistant professor at universities in New Mexico, Nebraska and Minnesota.
After returning to Yemen, I used my American education and skills to help my country, serving as Yemen’s minister of agriculture and fisheries and establishing one of the country’s leading institutions of higher learning, Ibb University. Abdulrahman used to tell me he wanted to follow in my footsteps and go back to America to study. I can’t bear to think of those conversations now.
The op-ed closes with a direct and haunting question:
The government has killed a 16-year-old American boy. Shouldn’t it at least have to explain why?
Sadly, we can state with confidence that even before the proceedings open the government will argue that it does not have to explain why it killed Abdulrahman. Because terror. Even more sadly, it is quite likely that the court will side with this senseless and lawless argument. Because terror.
What has our country become?
Writing yesterday in the Daily Beast, Lt. Col. Daniel Davis provides a moving tribute to the late Michael Hastings. In the piece, we learn that Hastings didn’t merely help Davis by publishing Davis’ long-form unclassified report detailing how “progress” in Afghanistan as reported by the military has no basis in reality, but Hastings actually provided some of the inspiration for Davis to enter into his process of exposing military lies:
I first met Michael in early May 2011, while I was in Washington on leave from the combat zone in Afghanistan. I agreed to meet him at the behest of a mutual friend, though I was hesitant. Prior to that meeting the only thing I knew about Hastings was that he had authored the Rolling Stone piece that led to the firing of Gen. Stanley McChrystal. Most people I knew in the military believed Hastings to be a raging liberal who hated the military. Yet because our mutual friend held him in such high esteem, I agreed to meet. I am so thankful I did so.
Within 10 minutes of meeting him my opinion had changed dramatically. I found him to be a very rational, honest, and respectful guy. He also showed real interest in and concern for the regular combat troop and was definitely not some “military hater.” Over the course of lunch that day I shared with him my frustration at what I believed to be a significant chasm between what some of our senior military leaders were saying in public and what I knew to be true behind the scenes. Michael told me that didn’t surprise him, because he’d seen it in his own experience over the years and had many soldiers tell him the same thing.
Note what fuels the relationship between Davis and Hastings. Both care deeply about regular combat soldiers and see that high-ranking officers are lying about what is taking place in Afghanistan. It is clear from Davis’ piece that this meeting with Hastings, and the understanding of Hastings’ motivations that the meeting provided, served as inspiration for Davis: Continue reading
In an article flattering Eric Holder’s sense of remorse once he realized how inappropriate it was to claim a journalist engaging in flattery might be a co-conspirator in a leak, Daniel Klaidman quotes a Holder friend explaining that the Attorney General doesn’t see himself as some kind of Torqemada figure pursuing journalists.
But for Attorney General Eric Holder, the gravity of the situation didn’t fully sink in until Monday morning when he read the Post’s front-page story, sitting at his kitchen table. Quoting from the affidavit, the story detailed how agents had tracked Rosen’s movements in and out of the State Department, perused his private emails, and traced the timing of his calls to the State Department security adviser suspected of leaking to him. Then the story, quoting the stark, clinical language of the affidavit, described Rosen as “at the very least … an aider, abettor and/or co-conspirator” in the crime. Holder knew that Justice would be besieged by the twin leak probes; but, according to aides, he was also beginning to feel a creeping sense of personal remorse.
As attorney general, a position at the intersection of law, politics, and investigations, Holder has been at the center of partisan controversy almost since taking office. But sources close to the attorney general says he has been particularly stung by the leak controversy, in large part because his department’s—and his own—actions are at odds with his image of himself as a pragmatic lawyer with liberal instincts and a well-honed sense of balance—not unlike the president he serves. “Look, Eric sees himself fundamentally as a progressive, not some Torquemada out to silence the press,” says a friend who asked not to be identified. [my emphasis]
Granted, the Torquemada metaphor was Holder’s friend’s, not his own. And granted, Holder’s DOJ has worked to avoid the kind of Muslim-bashing people like Peter King have called for (though his DOJ has also slow-walked its investigation into NYPD’s profiling of Muslims and allowed FBI to engage in similar behavior).
But the reference to Torquemda highlighted how limited this remorse is — just to investigations involving journalists, not Muslims, for example — and how thin Holder’s apparent understanding of the problem remains.
Remember Jim’s question whether David Petraeus was withholding intelligence last year? And remember my observation that Dick Cheney’s propagandist had resuscitated Petraeus’ gripes about talking points? And remember my focus on the way the Intelligence Committees had become mere spokespeople for the Intelligence Community?
The WaPo adds to that thread. First, by pointing out that Petraeus responded to Dutch Ruppersberger’s (allegedly unsolicited) request for talking points by trying to include intelligence he hadn’t in his briefing.
“We had some new members on the committee, and we knew the press would be very aggressive on this, so we didn’t want any of them to make mistakes,” Rep. C.A. Dutch Ruppersberger III (Md.) said last week of his request in an account supported by Republican participants. “We didn’t want to jeopardize sources and methods, and we didn’t want to tip off the bad guys. That’s all.”
What Petraeus decided to do with that request is the pivotal moment in the controversy over the administration’s Benghazi talking points. It was from his initial input that all else flowed, resulting in 48 hours of intensive editing that congressional Republicans cite as evidence of a White House coverup.
A close reading of recently released government e-mails that were sent during the editing process, and interviews with senior officials from several government agencies, reveal Petraeus’s early role and ambitions in going well beyond the committee’s request, apparently to produce a set of talking points favorable to his image and his agency.
The information Petraeus ordered up when he returned to his Langley office that morning included far more than the minimalist version that Ruppersberger had requested. It included early classified intelligence assessments of who might be responsible for the attack and an account of prior CIA warnings — information that put Petraeus at odds with the State Department, the FBI and senior officials within his own agency.
And by claiming that the minimal talking points the NatSec establishment came up with didn’t meet Ruppersberger’s needs.
Morell responded with concern about whether Petraeus would approve the document, even after other agencies had signed off.
“Please run the points by the Director, then get them to HPSCI,” he wrote soon after. “I spoke to the Director earlier about State’s deep concerns about mentioning the warnings and the other work done on this, but you will want to reemphasize in your note to DCIA.”
Morell was right to be worried.
In an e-mail sent two hours later to Morell and others inside the agency, Petraeus wrote, “No mention of the cable to Cairo, either? Frankly, I’d just as soon not use this, then. . . [National Security Council] call, to be sure; however, this is certainly not what Vice Chairman Ruppersberger was hoping to get for unclas use.”
Asked about Petraeus’s warning, Ruppersberger said, “I’m not sure what he meant. I had no expectations.”
It appears, then, that Petraeus tried to use Ruppersberger’s request (which, I suspect, we’ll one day learn wasn’t all that spontaneous) as an opportunity to introduce new issues into the discussion, basically to save his own ass.
It sure looks like Petraeus was more involved in creating the opportunity for the talking points controversy than we have thus far confirmed.
The same day that the White House released 94 pages of Benghazi emails, which not only show that most at CIA supported the talking points used by the Administration but also include annotations of the CIA roles involved that reveal far more about CIA’s structure than any FOIA response I’ve ever seen, Tommy Vietor went on the record about UndieBomb 2.0 with both the WaPo and MSNBC. It appears he did so to reinforce the fear-mongering language Eric Holder used (though like Holder, Vietor doesn’t explain why John Brennan got a promotion after contributing to such a damaging leak). He said this to WaPo.
Vietor said that it would be a mistake to dismiss the unauthorized disclosure because al-Qaeda failed to carry out its plot.
“We shouldn’t pretend that this leak of an unbelievably sensitive dangerous piece of information is okay because nobody died,” he said.
But the WaPo account also seems to serve (like the Benghazi email dump does) to place blame on CIA.
It answers a question I hinted at yesterday: whether the CIA and White House were on different pages on what to do with the AP story. Reportedly, after AP had given the CIA time to kill Fahd al-Quso (the WaPo doesn’t mention that was the purpose of the delay), CIA’s Mike Morell told the AP the security issue had been addressed, but asked for one more day. As AP considered that request, the White House overrode that discussion.
Michael J. Morell, the CIA’s deputy director, gave AP reporters some additional background information to persuade them to hold off, Vietor said. The agency needed several days more to protect what it had in the works.
Then, in a meeting on Monday, May 7, CIA officials reported that the national security concerns were “no longer an issue,” according to the individuals familiar with the discussion.
When the journalists rejected a plea to hold off longer, the CIA then offered a compromise. Would they wait a day if AP could have the story exclusively for an hour, with no government officials confirming it for that time?
The reporters left the meeting to discuss the idea with their editors. Within an hour, an administration official was on the line to AP’s offices.
The White House had quashed the one-hour offer as impossible. AP could have the story exclusively for five minutes before the White House made its own announcement. AP then rejected the request to postpone publication any longer.
This must be the crux of the animosity here. CIA told AP the danger had passed (though according to some reports, our informant was still in Yemen). At that point, the AP should have and ultimately did feel safe to publish. But then the White House made this ridiculous request, effectively refusing to let AP tell this story before the White House had a shot at it.
Which is why this claim, from Tommy Vietor, is so absurd.
But former White House national security spokesman Tommy Vietor, recalling the discussion in the administration last year, said officials were simply realistic in their response to AP’s story. They knew that if it were published, the White House would have to address it with an official, detailed statement.
“There was not some press conference planned to take credit for this,” Vietor said in an interview. “There was certainly an understanding [that] we’d have to mitigate and triage this and offer context for other reporters.”
Jeebus Pete! If your idea of “mitigating and triaging” AP’s fairly complimentary story is to make it far, far worse by hinting about the infiltrator, you’re doing it wrong!
Vietor, who presumably had a role in setting up the conference all at which Brennan tipped off Richard Clarke (though according to Brennan, he did not sit in on the call), insists to MSNBC that telling someone we had “inside control” of this plot does not constitute a gigantic clue that the entire plot was just a sting.
Tommy Vietor, then chief national security spokesman for the White House, disputed the idea that Brennan disclosed sensitive details in his background briefing and said it was “ridiculous” to equate Brennan’s use of the phrase “inside control” with having an “informant.”
It’s a nonsense claim, of course. Someone fucked up the “mitigating and triaging” process, and that’s what made this leak so dangerous, not AP’s initial story. But, presumably because AP didn’t let White House tell the official story before they reported their scoop (and did they plan on telling us all we had inside control on the op if they got to tell the story first?!?), the AP has, as far as we know, borne the brunt of the investigation into the leak.
For the moment let me reiterate two more details.
It appears that Vietor is blaming CIA for the way this went down. And guess what? The guy who blathered about “inside control” has now taken over the CIA.
Then there’s this. Eric Holder noted yesterday that the investigation into David Petraeus for leaking classified information — understood to be limited to his mistress Paula Broadwell, mind you — is ongoing. That means the FBI interview he had on April 10 was not sufficient to answer concerns about his involvement in leaking classified information.
It’s interesting this is coming down to a conflict between White House and CIA, isn’t 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.
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.