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Journalists: Eric Holder Believes You’re Probably a Criminal But Won’t Charge You

As I noted the other day, Eric Holder seems intent on calling journalists whom he believes are co-conspirators in a criminal leak something else.

Which is why I think this detail, from Politico’s leaks-about-a-meeting-about-leaks story, is the most telling I’ve seen on the Holder meeting.

“The guidelines require a balance between law enforcement and freedom of the press, and we all argued that the balance was out of kilter, with the national security and law enforcement interests basically overwhelming the public’s right to get information,” one journalist at the meeting said. “The language concerning ‘aiding and abetting’ comes out of the Privacy [Protection] Act, and they discussed trying to revise that language so that reporters don’t need to be defined as co-conspirators in order to execute search warrants.”

This is a reference to part of the Privacy Act that prohibits the government from seizing media work product unless it is connected to a crime (see pages 5 ff for how it affected the James Rosen warrant application). After claiming Rosen was aiding and abetting a violation of the Espionage Act and therefore his emails could be seized, the FBI then said that since he was potentially criminally liable, he should not get notice. In other words, the aiding abetting was an investigative tactic DOJ used to get around protections put into place just for someone like Rosen.

And DOJ’s solution for abusing a protection meant to protect someone like Rosen is apparently to simply redefine the law, so it can overcome those protections without having to accuse Rosen of being a criminal.

The outcome would remain the same; DOJ would just avoid saying mean things about people associated with powerful media outlets.

But the letter Principal Assistant Deputy Attorney General Peter Kadzik sent to answer Bob Goodlatte and Jim Sensenbrenner’s questions about Eric Holder’s testimony about whether he ever prosecuted a journalist makes it clear he thinks James Rosen probably is a criminal, regardless of what he calls it.

When the Department has initiated a criminal investigation into the unauthorized disclosure of classified information, the Department must, as it does in all criminal investigations, conduct a thorough investigation and follow the facts where they lead. Seeking a search warrant is part of an investigation of potential criminal activity, which typically comes before any final decision about prosecution. Probable cause sufficient to justify a search warrant is different from a decision to bring charges for that crime; probable cause is a significantly lower burden of proof than beyond a reasonable doubt, which is required to obtain a conviction on criminal charges.

Note the slippage here: Kadzik says the standard for a probable cause warrant is different than the standard for charging, then says a probable cause warrant is different from the standard for convicting.

What Kadzik is implicitly suggesting is that while DOJ might think Rosen was a criminal co-conspirator, they’d never win their case against him. So they never considered charging him.

I joked some weeks ago that journalists should take solace in all this: Obviously, Eric Holder holds them in precisely the same category as banksters, those who are guilty of a crime but that DOJ chooses not to charge with one.

This letter seems to support this.

Press Freedom: It Depends on What the Meaning of the Word “Is” Is

As we get further away from last week’s what’s-new-is-old counterterrorism speech, I’m increasingly convinced all that happened was the Administration yoked the word “continuing” onto the word “imminent” and declared an entirely new standard that just happens to replicate the existing one.

Which is why I think this detail, from Politico’s leaks-about-a-meeting-about-leaks story, is the most telling I’ve seen on the Holder meeting.

“The guidelines require a balance between law enforcement and freedom of the press, and we all argued that the balance was out of kilter, with the national security and law enforcement interests basically overwhelming the public’s right to get information,” one journalist at the meeting said. “The language concerning ‘aiding and abetting’ comes out of the Privacy [Protection] Act, and they discussed trying to revise that language so that reporters don’t need to be defined as co-conspirators in order to execute search warrants.”

This is a reference to part of the Privacy Act that prohibits the government from seizing media work product unless it is connected to a crime (see pages 5 ff for how it affected the James Rosen warrant application). After claiming Rosen was aiding and abetting a violation of the Espionage Act and therefore his emails could be seized, the FBI then said that since he was potentially criminally liable, he should not get notice. In other words, the aiding abetting was an investigative tactic DOJ used to get around protections put into place just for someone like Rosen.

And DOJ’s solution for abusing a protection meant to protect someone like Rosen is apparently to simply redefine the law, so it can overcome those protections without having to accuse Rosen of being a criminal.

The outcome would remain the same; DOJ would just avoid saying mean things about people associated with powerful media outlets.

And note, from the reports I’ve seen thus far, none of these crack journalists seem to have suggested to DOJ that even the way it was using the Espionage Act to go after sources (many of whom are whistleblowers) is a dangerous misapplication of statute, just like calling James Rosen a co-conspirator is. That is, DOJ’s use of the Espionage Act to give the clearance system more teeth than it was meant to have seems to have escaped these media representatives’ notice.

Ah well. If they had raised DOJ’s abuse of the Espionage Act, DOJ would just do what they appear to intend to do with its abuse of Privacy Act restrictions: redefine the terms and proceed as they had been.

Torquemada Pursued Suspected Muslims, Not Journalists

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.

[snip]

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.

Read more

Putin: You Show Me Yours and … I Might Show You Mine

AG-meeting1-300x199It’s not until the 17th and 18th paragraph of this Moscow Times article on Russian Interior Minister Vladimir Alexandrovich Kolokoltsev’s discussion with Attorney General Eric Holder about sharing more law enforcement information that it reminds readers that just three days before the Boston Marathon attack, Russia and the US were exchanging blacklists of people prohibited from travel to their respective country.

The Interior Ministry won a court ruling to authorize Browder’s arrest and place him on an international arrest warrant shortly after the U.S. released its so-called Magnitsky list of 18 Russians banned from entry into the country. Among those on the list are Artyom Kuznetsov and Pavel Karpov, Interior Ministry investigators who put Magnitsky behind bars.

The blacklist, published April 12, provoked a storm of protest from Moscow and a tit-for-tat release of a blacklist of U.S. officials. But the Boston bombing occurred just three days later, causing the two sides to tone down their rhetoric and take a second look at relations.

The Russian blacklist not only includes torturers like John Yoo, but people involved in Viktor Bout’s prosecution.

And it makes no mention of the complaints that Russia has been slow to share information since.

Details on tensions surrounding Magnitsky come long after the details on information sharing in the article: Robert Mueller promises to open up some FBI files to the Russians in anticipation of the 2014 Winter Olympics, and we’ve exchanged 827 documents this year.

FBI director Robert Mueller promised Kolokoltsev in Washington late last week to open some FBI data to the Russians, saying, “Such resources could be useful to Russian law enforcement agencies in view of the Sochi Olympics,” the Interior Ministry said in a statement.

About 15,000 U.S. citizens could attend the Sochi Olympics, according to Mueller.

Mueller also thanked the Russian side for the help it provided in investigating the Boston Marathon bombing, which U.S. investigators believe was masterminded and carried out by brothers Tamerlan and Dzhokhar Tsarnaev, who have mixed Chechen-Dagestani origin.

[snip]

Kolokoltsev also met with U.S. Attorney General Eric Holder and suggested that the Interior Ministry sign a legal cooperation agreement with the U.S. Justice Department.

“Since the beginning of this year, we have exchanged 827 documents with U.S. law enforcement agencies,” Kolokoltsev told reporters, noting that the U.S. is one of top five countries with which Russia cooperates within the framework of the Interpol.

So if you’re planning on attending the Olympics in Russia next year, don’t piss off the FBI before then!

Then there’s the bit Russian Times doesn’t mention, which happens to be one of the very few things included in the US Department of Justice statement on this meeting. The US plans to share not just counterterrorism information, but also transnational crime organization.

They also discussed law enforcement cooperation between the two countries in areas including counterterrorism, transnational organized crime and child pornography.

Recall, Russian mobsters are among the four organizations the Obama Administration listed among the Transnational Criminal Organizations we would use terrorism-like tactics to hunt down; we’ve focused on Central Asian mobsters in our specific sanctions. It’s not clear that Russia has been particularly forthcoming with cooperation on this front in the past.

Let’s see whether this buzz about information sharing changes that.

What “Not Specifically Targeted” Means for Abdulrahman al-Awlaki

A number of people are discussing the killing of Abdulraham al-Awlaki as if the government has claimed he was accidentally targeted.

That’s not what the government has officially said. In his letter declassifying American drone deaths the other day, Eric Holder said Abdulrahman, Samir Khan, and Jude Kenan Mohammad were “not specifically targeted.” Which is quite different from saying it was an accident.

Administration officials were quick to offer an explanation about one of these deaths, that of Mohammad: he died in a signature strike, officials said anonymously, but a former consultant also suggests he was on the kill list.

American officials said on Wednesday that Mr. Mohammad had been killed with about 12 other insurgents in what the C.I.A. calls a “signature strike,” an attack based on patterns of activity, such as men toting arms in an area controlled by extremist groups. Such strikes have prompted the sharpest divisions inside the Obama administration, with some officials questioning whether killing unidentified fighters is legally justified or worth the local backlash.

[snip]

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.

“He had risen to the top of the U.S. deck,” said Seth G. Jones, a senior political scientist at the RAND Corporation and former adviser to the military’s Special Operations Command. Mr. Jones said that while in Pakistan, Mr. Mohammad had made contact with five young Virginia men who disappeared from their homes around Thanksgiving in 2009 and turned up seeking to join militant groups. Instead they were arrested and remain in Pakistani custody.

But officials have been a lot more squirmy about Abdulrahman’s death.

At a pre-speech briefing yesterday, a senior Administration official was asked about Abdulrahman specifically. Between an unbelievable number of “ums,” he first tried to generalize about all three “not specifically targeted” individuals and then provided two possibilities: presence at “al Qaeda and associated facilities” or civilian accidents (neither of which incorporates the explanations provided the NYT for Mohammad’s death).

I don’t want to get into the details of each of those instances.  What I will say generally is that there are times when there are individuals who are present at al Qaeda and associated forces facilities, and in that regard they are subject to the lethal action that we take.  There are other instances when there are tragic cases of civilian casualties and people that the United States does not in any way intend to target — because, again, as in any war, there are tragic consequences that come with the decision to use force, including civilian casualties.

The first of those — presence at an al Qaeda “facility” — is closer to what the Administration has said about Abdulrahman’s death in the past, when they have claimed they were targeting Ibrahim al-Banna. Though AQAP reported that he was never at the site.

But here’s what a former Obama official told Jeremy Scahill about Abdulrahman’s killing.

A former senior official in the Obama administration told me that after Abdulrahman’s killing, the president was “surprised and upset and wanted an explanation.” The former official, who worked on the targeted killing program, said that according to intelligence and Special Operations officials, the target of the strike was al-Banna, the AQAP propagandist. “We had no idea the kid was there. We were told al-Banna was alone,” the former official told me. Once it became clear that the teenager had been killed, he added, military and intelligence officials asserted, “It was a mistake, a bad mistake.” However, John Brennan, at the time President Obama’s senior adviser on counterterrorism and homeland security, “suspected that the kid had been killed intentionally and ordered a review. I don’t know what happened with the review.”

In other words, it sounds like some in the Administration suspect that someone within the targeting chain of command may have invented the Ibrahim al-Banna presence as a way to get at Awlaki’s son. (Note, elsewhere Scahill suggested that the Awlaki family suspects a teacher may have been trying to recruit Abdulrahman to help hunt down his father, which might give those recruiters reason to want to silence him after they did kill Awlaki.)

In a piece on the drone program yesterday, Daniel Klaidman revealed that some people within the Administration were trying to keep mention of Abdulrahman and the two others out of Holder’s letter from the other day.

Officials tell The Daily Beast the original plan was to name only Anwar al-Awlaki, while referring to the other three anonymously. That changed when some officials at the Department of Justice argued that withholding the names would defeat the purpose of Obama’s much-touted call for more openness.

If Abdulrahman was killed deliberately, via some kind of deceit, I can understand why the Administration was reluctant to make its role in his death official. John Brennan’s report about it is presumably out there somewhere (though as a White House report, it would be harder to FOIA than a CIA IG Report).

Clearly, the Administration has made some effort to gain a greater understanding of how Abdulrahman was killed than the hemming and hawing official admitted to yesterday. Which suggests “not specifically targeted” might not even rule out “targeted in deceitful fashion.”

Obama’s Finger Is On the Trigger Except Where It Matters

Update: In his speech, Obama took clear responsibility for killing Awlaki.

And as President, I would have been derelict in my duty had I not authorized the strike that took out Awlaki.

Daniel Klaidman remains the Administration’s go-to guy for stories that report facts that contradict the spin he gives them. Today’s installment explains that Obama insisted on retaining direct say over DOD drone strikes in part to ensure we don’t get embroiled in new wars.

Obama wanted to assume the moral responsibility for what were in effect premeditated government executions. But sources familiar with Obama’s thinking say he also wanted to personally exercise supervision over lethal strikes away from conventional battlefields to avoid getting embroiled in new wars.

But at the same time reports that Obama didn’t exercise direct control over those strikes — in Pakistan and, starting in 2011, in Yemen — that have threatened to embroil us in new wars (and indeed, in the case of our strikes on the Pakistani Taliban, led directly to terrorist attacks on the US as well as the Khost attack).

While Obama had broadly signed off on the CIA’s targeted killing program through a presidential finding for covert action, he did not authorize individual killings except in rare instances.

Effectively, by the time Obama overruled the military in the fight Klaidman portrays in this piece last year, all of the strikes away from battlefields were conducted by the CIA, the strikes Obama apparently took no moral responsibility for.

Klaidman’s report includes another laugher, one which undermines the central Administration claim that today’s speech will represent new drone guidelines.

Lethal force can only be used against targets who represent a “continuing, imminent threat,” and where “capture is not feasible,” Holder said in his letter. It is unclear whether that would signal an end to the controversial practice of “signature strikes,” where groups of suspected terrorists have been targeted even though their identities were not known. (The tactic is believed to have led to significant civilian casualties, while at the same time increasing the number of high level al Qaeda members who were killed.) One senior Obama administration official said the question of signature strikes, sometimes referred to morbidly as “crowd killing,” has yet to be resolved.

I guess my earlier suggestion that the word “ongoing” will be defined so broadly as to allow a great number of problematic drone strikes was correct: it apparently might even include signature strikes.

But ultimately, this is the funniest thing about this perfectly time advertisement that on drones Obama is (yes, Klaidman uses this term) “the decider.” Klaidman’s headline (one he likely didn’t choose) is,

Obama: I Make the Drone Decisions

His closing two sentences are,

Obama won’t be declaring the end of the war anytime soon. And that is why his finger will still be on the trigger.

Yet the day before this obviously sanctioned story, Obama’s Attorney General sent out a letter that shielded the President from all responsibility for the decision to kill an American citizen. Again, maybe Obama will change this trend today by taking responsibility for personally ordering the execution of Anwar al-Awlaki. But it seems as though, even as the Administration boasts of “unprecedented transparency,” they still want to legally protect one of the most important facts about drone killing.

Obama (Almost) Capitulates to ACLU on Drone Killing Standards

Actually, that headline overstates things. Obama will never capitulate to ACLU, the organization. As I’ve shown, his Administration has gone to absurd lengths to defeat ACLU in Court, even holding up legitimate congressional oversight to do so.

But Eric Holder’s letter to Congress yesterday suggested that the government’s new drone rulebook will almost adhere to the standard the ACLU tried to hold the President to almost 3 years ago. Holder claims,

This week the President approved and relevant congressional committees will be notified and briefed on a document that institutionalizes the Administration’s exacting standards and processes for reviewing and approving operations to capture or use lethal force against terrorist targets outside the United States and areas of active hostilities; these standards are either already in place or are to be transitioned into place.

[snip]

When capture is not feasible, the [new drone] policy provides that lethal force may be used only when a terrorist target poses a continuing, imminent threat to Americans, and when certain other preconditions, including a requirement that no other reasonable alternatives exist to effectively address the threat are satisfied.

That’s very close to the standard Nasser al-Awlaki, the ACLU, and Center for Constitutional Rights sought in August 2010 when they sued to prevent the government from killing Anwar al-Awlaki unless he was such an imminent threat.

Plaintiffs seek a declaration from this Court that the Constitution and international law prohibit the government from conducting targeted killing outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; and an injunction prohibiting the targeted killing of U.S. citizen Anwar al-Aulaqi outside this narrow context.

When I noted the Administration was now embracing the standard it had refused in 2010, ACLU’s Jameel Jaffer responded on Twitter,

Is it? What’s the function of the word “continuing”?

He’s got a point. Read more

In Guilty Plea, Abdulmutallab Named Awlaki as Inspiration, Not as Co-Conspirator

In Eric Holder’s letter on drone killing today, he used Umar Farouk Abdulmutallab’s UndieBomb attack as the most extensive evidence justifying the assassination of Anwar al-Awlaki.

For example, when Umar Farouk Abdulmutallab — the individual who attempted to blow up an airplane bound for Detroit on Christmas Day 2009 — went to Yemen in 2009, al-Aulaqi arranged an introduction via text message. Abdulmutallab told U.S. officials that he stayed at al-Aulaqi’s house for three days, and then spent two weeks at an AQAP training camp. Al-Aulaqi planned a suicide operation for Abdulmutallab, helped Abdulmutallab draft a statement for a martyrdom video to be shown after the attack, and directed him to take down a U.S. airline. Al-Aulaqi’s last instructions were to blow up the airplane when it was over American soil. [Emphasis original]

That version of what Abdulmutallab said about his attack draws on Abdulmutallab’s confession to the High Value Interrogation Group at Milan Correctional Facility, last presented in a narrative submitted at Abdulmutallab’s sentencing. I commented on some oddities in that narrative here and will likely return to it.

Contrast that with how Abdulmutallab pled guilty to conspiracy to commit terrorism in court in October 2011.

In the name of Allah, the most merciful, if I were to say I the father did not do it, but my son did it and he conspired with the holy spirit to do it, or if I said I did it but the American people are guilty of the sin, and Obama should pay for the crime, the Court wouldn’t accept that from me or anyone else.

In late 2009, in fulfillment of a religious obligation, I decided to participate in jihad against the United States. The Koran obliges every able Muslim to participate in jihad and fight in the way of Allah, those who fight you, and kill them wherever you find them, some parts of the Koran say, an eye for an eye, a tooth for a tooth.

I had an agreement with at least one person to attack the United States in retaliation for U.S. support of Israel and in retaliation of the killing of innocent and civilian Muslim populations in Palestine, especially in the blockade of Gaza, and in retaliation for the killing of innocent and civilian Muslim populations in Yemen, Iraq, Somalia, Afghanistan and beyond, most of them women, children, and noncombatants.

As a result, I traveled to Yemen and eventually to the United States, and I agreed with at least one person to carry an explosive device onto an aircraft and attempt to kill those onboard and wreck the aircraft as an act of jihad against the United States for the U.S. killing of my Muslim brothers and sisters around the world.

I was greatly inspired to participate in jihad by the lectures of the great and rightly guided mujahideen who is alive, Sheikh Anwar al-Awlaki, may Allah preserve him and his family and give them victory, Amin, and Allah knows best. [my emphasis]

He pleads to a conspiracy (the first crime he was charged with), but he doesn’t name the person or people with whom he conspired.

Then, immediately after not naming his co-conspirators, he says he was inspired to conduct this act by Anwar al-Awlaki. But even there, he doesn’t attribute Awlaki’s influence to conversations he had with Awlaki in Yemen — even Awlaki acknowledged to having contact with Abdulmutallab, though he maintained he did not order the attack. Rather, Abdulmutallab points to speeches Awlaki published, speeches which, according to other court documents, he listened to as early as 2005.

Thus, at a moment when Abdulmutallab controlled his own speech, when there was no question of coercion (though his current lawyer now challenges his competence at the time), in a speech in which he boasted of Awlaki’s role in inspiring his terror attack, he did not name Awlaki as his co-conspirator.

You could argue, I suppose, that Abdulmutallab did so out of some belief the government or news had lied about Awlaki’s death almost two weeks before (as he makes clear, he refused to believe Awlaki was dead), in an attempt to get him to implicate Awlaki, and that his tribute to Awlaki’s influence but not co-conspiracy was an attempt to push back. The FBI appears to have badgered Abdulmutallab about the likelihood Awlaki would be killed after he got put on a kill list, so it is possible he worried that if he implicated Awlaki he might lead to his death (which had already happened).

Whatever the explanation, these two narratives present two of the three confessions Abdulmutallab gave (the other being the one he gave just after he had been captured, as presented by AUSA Jonathan Tukel at trial, in which Abdulmutallab did not name Awlaki at all). And as the Administration’s newfound transparency rolls out tomorrow, it’s worth keeping in mind that the confession that implicates Awlaki is just one of three Abdulmutallab made, and not even the most recent known one.

“At the Highest Levels of the U.S. Government” … Like the President?

Update: Obama did, in fact, take responsibility for ordering the killing.

And as President, I would have been derelict in my duty had I not authorized the strike that took out Awlaki.

There’s something missing from Eric Holder’s 8 paragraphs justifying the assassination of Anwar al-Awlaki.

In spite of the many sanctioned leaks asserting that President Obama “insist[s] on approving every new name on an expanding ‘kill list,'” Holder never explicitly says Obama did so with Awlaki. The Attorney General attributes the decision itself to “high-level U.S. government officials,” “senior officials,” and “senior officials” again.

Here’s how he describes the review process:

The decision to use lethal force is one of the gravest that our government, at every level, can face. The operation to target Anwar al-Aulaqi was thus subjected to an exceptionally rigorous interagency legal review: not only did I and other Department of Justice lawyers conclude after a thorough and searching review that the operation was lawful, but so too did other departments and agencies within the U.S. government.

The decision to target Anwar al-Aulaqi was additionally subjected to extensive policy review at the highest level of the U.S. Government, and senior U.S. officials also briefed the appropriate committees of Congress on the possibility of using lethal force against al-Aulaqi. Indeed, the Administration informed the relevant congressional oversight committees that it had approved the use of lethal force against al-Aulaqi in February 2010 — well over a year before the operation in question — and the legal justification was subsequently explained in detail to those committees, well before action was taken against Aulaqi. This extensive outreach is consistent with the Administration’s strong and continuing commitment to congressional oversight of our counterterrorism operations — oversight which ensures, as the President stated during his State of the Union address, that our actions are “consistent with our laws and systems of checks and balances.”

Sure, the code words meaning “the President” are in there: “at every level,” “at the highest level of the U.S. Government.” It quotes Obama’s State of the Union address at the very end, like a flourish detached from the nasty killing bit.

And the process described here, where “the Administration” informs the intelligence committees of the lethal force operations “it had approved,” is clearly that of a covert op, which requires the President’s to inform Congress of covert ops he has approved.

But unlike DOJ and the congressional committees, he’s not named in the decision process that ended up killing Awlaki. (Though Holder does later say that Obama approved the Disposition Matrix which he describes will soon be briefed to Congress, which of course implies Presidential approval for all the drone deaths to come, but not Awlaki’s.)

This might be a picayune observation if this Administration had not, secretly, made almost unprecedented efforts to keep a short phrase indicating the President (Bush) had authorized the torture program.

In his letter, Holder references Obama’s Archives Speech pledge that “whenever possible, my administration will make all information available to the American people so that they can make informed judgments and hold us accountable” (though in Holder’s letter, the “us” becomes “their Government”). He ends this letter by assuring its recipients “that the President and his national security team are mindful of this Administration’s pledge to public accountability for our counterterrorism efforts.”

But on the specific issue of Anwar al-Awlaki’s killing, this letter allows Obama (along with the CIA and DOD, presumably to avoid helping the ACLU in its FOIA — though it may be too late) to avoid any accountability.

Perhaps tomorrow Obama will stand before a bunch of cameras and admit “I personally ordered an American citizen to be drone killed.” But this letter feels like an effort to help him avoid publicly accepting just that responsibility.

Update: As QuietAmerican reminded me, Obama is quoted in that NYT piece as saying the decision to kill Awlaki was “an easy one.”

First They Came for James Risen …

I don’t mean to suggest the journalism world did not object to the three subpoenas James Risen got in the Jeffrey Sterling case. They did.

But today’s news that Fox’s James Rosen was accused of being an “Aider or Abettor” to Stephen Jin-Woo Kim’s alleged crime of leaking information on Korea is just part of a progression. (See also WaPo’s story which broke this.)

“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.

The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.

[snip]

As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.

“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”

“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”

After all, in January 2011 (which was actually after this affidavit, but appeared 10 months before this affidavit was unsealed), DOJ argued that when Jeffrey Sterling leaked information to James Risen about a dangerous plot to deal nuke blueprints to Iran, his actions were worse than what DOJ called “typical espionage.”

The defendant’s unauthorized disclosures, however, may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money. Unlike the typical espionage case where a single foreign country or intelligence agency may be the beneficiary of the unauthorized disclosure of classified information, this defendant elected to disclose the classified information publicly through the mass media. Thus, every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.

Then, in March 2011, DOD charged Bradley Manning with aiding the enemy because he leaked a bunch of stuff to us.

In other words, during a period from May 2010 through January 2011, Eric Holder’s DOJ was developing this theory under which journalists were criminals, though it’s just now that we’re all noticing this May 2010 affidavit that lays the groundwork for that theory.

Maybe that development was predictable, given that during precisely that time period, the lawyer who fucked up the Ted Stevens prosecution, William Welch, was in charge of prosecuting leaks (though it’s not clear he had a role in Kim’s prosecution before he left in 2011).

But it’s worth noting the strategy — and the purpose it serves — because it is almost certainly still in effect. FBI Special Agent Reginald Reyes accused Rosen of being a criminal so he could get around the Privacy Protection Act protections for media work product (See pages 4 and following), which specifically exempts “fruits of a crime” or “property … used [] as a means of committing a criminal offense.” Then he further used it to argue against giving notice to Fox or Rosen.

Because of the Reporter’s own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from Reporter would be futile and would pose a substantial threat to the integrity of the investigation and of the evidence we seek to obtain by the warrant. (29)

While the AP’s phone records weren’t taken via a warrant, it would be unsurprising if the government is still using this formula — journalists = criminals and therefore cannot have notice — to collect evidence. Indeed, that may be one reason why we haven’t seen the subpoena to the AP.

Of course, this is not just about journalists. In this schema, providing information about what our government is doing in our name to citizens constitutes a crime.

This criminalization of journalism is a fundamentally anti-democratic stance.