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DOJ’s Failures to Follow Media Guidelines on the WaPo Seizure

I wanted to add a few data points regarding the report that DOJ subpoenaed records from three WaPo journalists.

This post is premised on three pieces of well-justified speculation: that John Durham, after having been appointed Special Counsel, obtained these records, that Microsoft challenged a gag, and that Microsoft’s challenge was upheld in some way. I’m doing this post to lay out some questions that others should be asking about what happened.

An enterprise host (probably Microsoft) likely challenged a gag order

The report notes that DOJ did obtain the reporters’ phone records, and tried, but did not succeed, in obtaining their email records.

The Trump Justice Department secretly obtained Washington Post journalists’ phone records and tried to obtain their email records over reporting they did in the early months of the Trump administration on Russia’s role in the 2016 election, according to government letters and officials.

In three separate letters dated May 3 and addressed to Post reporters Ellen Nakashima and Greg Miller, and former Post reporter Adam Entous, the Justice Department wrote they were “hereby notified that pursuant to legal process the United States Department of Justice received toll records associated with the following telephone numbers for the period from April 15, 2017 to July 31, 2017.” The letters listed work, home or cellphone numbers covering that three-and-a-half-month period.

[snip]

The letters to the three reporters also noted that prosecutors got a court order to obtain “non content communication records” for the reporters’ work email accounts, but did not obtain such records. The email records sought would have indicated who emailed whom and when, but would not have included the contents of the emails. [my emphasis]

What likely happened is that DOJ tried to obtain a subpoena on Microsoft or Google (almost certainly the former, because the latter doesn’t care about privacy) as the enterprise host for the newspaper’s email service, and someone challenged or refused a request for a gag, which led DOJ to withdraw the request.

There’s important background to this.

Up until October 2017, when the government served a subpoena on a cloud company that hosts records for another, the cloud company was often gagged indefinitely from telling the companies whose email (or files) it hosted. By going to a cloud company, the government was effectively taking away businesses’ ability to challenge subpoenas themselves, which posed a problem for Microsoft’s ability to convince businesses to move everything to their cloud.

That’s actually how Robert Mueller obtained Michael Cohen’s Trump Organization emails — by first preserving, then obtaining them from Microsoft rather than asking Trump Organization (which was, at the same time, withholding the most damning materials when asked for the same materials by Congress). Given what we know about Trump Organization’s incomplete response to Congress, we can be certain that had Mueller gone to Trump Organization, he might never have learned about the Trump Tower Moscow deal.

In October 2017, in conjunction with a lawsuit settlement, Microsoft forced DOJ to adopt a new policy that gave it the right to inform customers when DOJ came to them for emails unless DOJ had a really good reason to prevent Microsoft from telling their enterprise customer.

Today marks another important step in ensuring that people’s privacy rights are protected when they store their personal information in the cloud. In response to concerns that Microsoft raised in a lawsuit we brought against the U.S. government in April 2016, and after months advocating for the United States Department of Justice to change its practices, the Department of Justice (DOJ) today established a new policy to address these issues. This new policy limits the overused practice of requiring providers to stay silent when the government accesses personal data stored in the cloud. It helps ensure that secrecy orders are used only when necessary and for defined periods of time. This is an important step for both privacy and free expression. It is an unequivocal win for our customers, and we’re pleased the DOJ has taken these steps to protect the constitutional rights of all Americans.

Until now, the government routinely sought and obtained orders requiring email providers to not tell our customers when the government takes their personal email or records. Sometimes these orders don’t include a fixed end date, effectively prohibiting us forever from telling our customers that the government has obtained their data.

[snip]

Until today, vague legal standards have allowed the government to get indefinite secrecy orders routinely, regardless of whether they were even based on the specifics of the investigation at hand. That will no longer be true. The binding policy issued today by the Deputy U.S. Attorney General should diminish the number of orders that have a secrecy order attached, end the practice of indefinite secrecy orders, and make sure that every application for a secrecy order is carefully and specifically tailored to the facts in the case.

Rod Rosenstein, then overseeing the Mueller investigation, approved the new policy on October 19, 2017.

The effect was clear. When various entities at DOJ wanted records from Trump Organization after that, DOJ did not approve the equivalent request approved just months earlier.

If DOJ withdrew a subpoena rather than have it disclosed, it was probably inconsistent with media guidelines

If I’m right that DOJ asked Microsoft for the reporters’ email records, but then withdrew the request rather than have Microsoft disclose the subpoena to WaPo, then the request itself likely violated DOJ’s media guidelines — at least as they were rewritten in 2015 after a series of similar incidents, including DOJ’s request for the phone records of 20 AP journalists in 2013.

DOJ’s media guidelines require the following:

  • Attorney General approval of any subpoena for call or email records
  • That the information be essential to the investigation
  • DOJ has taken reasonable attempts to obtain the information from alternate sources

Most importantly, DOJ’s media guidelines require notice and negotiation with the affected journalist, unless the Attorney General determines that doing so would “pose a clear and substantial threat to the integrity of the investigation.”

after negotiations with the affected member of the news media have been pursued and appropriate notice to the affected member of the news media has been provided, unless the Attorney General determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.

But a judge can review the justifications for gags before issuing them (for all subpoenas, not just media ones).

Just as an example, the government obtained a gag on Twitter, Facebook, Instagram and Google when obtaining Reality Winner’s cloud-based communications a week after they had arrested her (at a time when she was in no position to delete her own content). After a few weeks, Twitter challenged the gag. A judge gave DOJ 180 days to sustain the gag, but in August 2017, DOJ lifted it.

That was a case where DOJ obtained the communications of an accused leaker, with possible unknown co-conspirators, so the gag at least made some sense.

Here, by contrast, the government would have been asking for records from journalists who were not alleged to have committed any crime. The ultimate subject of the investigation would have no ability to destroy WaPo’s records. The records — and the investigation — were over three years old. Whatever justification DOJ gave was likely obviously bullshit.

Hypothetical scenario: DOJ obtains cell phone records only to have a judge rule a gag inappropriate

Let me lay out how this might have worked to show why this might mean DOJ violated the media guidelines. Here’s one possible scenario for what could have happened:

  • In the wake of the election, John Durham subpoenaed the WaPo cell providers and Microsoft, asking for a gag
  • The cell provider turned over the records with no questions — neither AT&T nor Verizon care about their clients’ privacy
  • Microsoft challenged the gag and in response, a judge ruled against DOJ’s gag, meaning Microsoft would have been able to inform WaPo

That would mean that after DOJ, internally — Billy Barr and John Durham, in this speculative scenario — decided that warning journalists would create the same media stink we’re seeing today and make the records request untenable, a judge ruled that that a media stink over an investigation into a 3-year old leak wasn’t a good enough reason for a gag. If this happened, it would mean some judge ruled that Barr and Durham (if Durham is the one who made the request) invented a grave risk to the integrity of their investigation that a judge subsequently found implausible.

It would mean the request itself was dubious, to say nothing of the gag.

Once again, DOJ failed to meet its own notice requirements

And with respect to the gag, this request broke another one of the rules on obtaining records from reporters: that they get notice no later than 90 days after the subpoena. The Justice Manual says this about journalists whose records are seized:

  • Except as provided in 28 C.F.R. 50.10(e)(1), when the Attorney General has authorized the use of a subpoena, court order, or warrant to obtain from a third party communications records or business records of a member of the news media, the affected member of the news media shall be given reasonable and timely notice of the Attorney General’s determination before the use of the subpoena, court order, or warrant, unless the Attorney General determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. 28 C.F.R. 50.10(e)(2). The mere possibility that notice to the affected member of the news media, and potential judicial review, might delay the investigation is not, on its own, a compelling reason to delay notice. Id.
  • When the Attorney General has authorized the use of a subpoena, court order, or warrant to obtain communications records or business records of a member of the news media, and the affected member of the news media has not been given notice, pursuant to 28 C.F.R. 50.10(e)(2), of the Attorney General’s determination before the use of the subpoena, court order, or warrant, the United States Attorney or Assistant Attorney General responsible for the matter shall provide to the affected member of the news media notice of the subpoena, court order, or warrant as soon as it is determined that such notice will no longer pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. 28 C.F.R. 50.10(e)(3). In any event, such notice shall occur within 45 days of the government’s receipt of any return made pursuant to the subpoena, court order, or warrant, except that the Attorney General may authorize delay of notice for an additional 45 days if he or she determines that for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. Id. No further delays may be sought beyond the 90‐day period. Id. [emphasis original]

Journalists are supposed to get notice if their records are seized. They’re supposed to get notice no later than 90 days after the records were obtained. AT&T and Verizon would have provided records almost immediately and this happened in 2020, meaning the notice should have come by the end of March. But WaPo didn’t get notice until after Lisa Monaco was confirmed as Deputy Attorney General and, even then, it took several weeks.

DOJ’s silence about an Office of Public Affairs review

While it’s not required by guidelines, in general DOJ has involved the Office of Public Affairs in such matters, so someone who has to deal with the press can tell the Attorney General and the prosecutor that their balance of journalist equities is out of whack. At the time, this would have been Kerri Kupec, who was always instrumental in Billy Barr’s obstruction and politicization.

But it’s not clear whether that happened. I asked Acting Director of OPA Marc Raimondi (the guy who has defended what happened in the press; he was in National Security Division at the time of the request), twice, whether someone from OPA was involved. Both times he ignored my question.

The history of Special Counsels accessing sensitive records and testimony

There’s a history of DOJ obtaining things under Special Counsels they might not have obtained without the Special Counsel:

  • Pat Fitzgerald coerced multiple reporters’ testimony, going so far as to jail Judy Miller, in 2004
  • Robert Mueller obtained Michael Cohen’s records from Microsoft rather than Trump Organization
  • This case probably represents John Durham, having been made Special Counsel, obtaining records that DOJ did not obtain in 2017

There’s an irony here: Durham has long sought ways to incriminate Jim Comey, who is represented by Pat Fitzgerald and others. In 2004, as Acting Attorney General, Comey approved the subpoenas for Miller and others. That said, given the time frame on the records request, it is highly unlikely that he’s the target of this request.

Whoever sought these records, it is virtually certain that the prosecutor only obtained them after making decisions that DOJ chose not to make when these leaks were first investigated in 2017, after Jeff Sessions announced a war on media leaks in the wake of having his hidden meeting with Sergey Kislyak exposed.

That suggests that DOJ decided these records, and the investigation itself, were more important in 2020 than Jeff Sessions had considered them in 2017, when his behavior was probably one of the things disclosed in the leak.

The dubious claim that these records could have been necessary or uniquely valuable

Finally, consider one more detail of DOJ’s decision to obtain these records: their claims, necessary under the media policy, that 3-year old phone and email records were necessary to a leak investigation.

When these leaks were first investigated in 2017, DOJ undoubtedly identified everyone who had access to the Kislyak intercepts and used available means — including reviewing the government call records of the potential sources — to try to find the leakers. If they had a solid lead on someone who might be the leaker, the government would have obtained the person’s private communication records as well, as DOJ did do during the contemporaneous investigation into the leak of the Carter Page FISA warrant that ultimately led to SSCI security official James Wolfe’s prosecution.

Jeff Sessions had literally declared war within days of one of the likely leaks under investigation here, and would approve a long-term records request from Ali Watkins in the Wolfe investigation and a WhatsApp Pen Register implicating Jason Leopold in the Natalie Edwards case. After Bill Barr came in, he approved the use of a Title III wiretap to record calls involving journalists in the Henry Frese case.

For the two and a half years between the time Sessions first declared war on leaks and the time DOJ decided these records were critical to an investigation, DOJ had not previously considered them necessary, even at a time when Sessions was approving pretty aggressive tactics against leaks.

Worse still, DOJ would have had to claim they might be useful. These records, unlike the coerced testimony of Judy Miller, would not have revealed an actual source for the stories. These records, unlike the Michael Cohen records obtained via Microsoft would not be direct evidence of a crime.

All they would be would be leads — a list of all the phone numbers and email addresses these journalists communicated with via WaPo email or telephony calls or texts — for the period in question. It might return records of people (such as Andy McCabe) who could be sources but also had legal authority to communicate with journalists. It would probably return a bunch of records of inquiries the journalists made that were never returned. It would undoubtedly return records of people who were sources for other stories.

But it would return nothing for other means of communication, such as Signal texts or calls.

In other words, the most likely outcome from this request is that it would have a grave impact on the reporting equities of the journalists involved, with no certainty it would help in the investigation (and an equally high likelihood of returning a false positive, someone who was contacted but didn’t return the call).

And if it was Durham who made the request, he would have done so after having chased a series of claims — many of them outright conspiracy theories — around the globe, only to have all of those theories to come up empty. Given that after years of investigation Durham has literally found nothing new, there’s no reason to believe he had any new basis to think he could solve this leak investigation after DOJ had tried but failed in 2017. Likely, what made the difference is that his previous efforts to substantiate something had failed, and Barr needed to empower him to keep looking to placate Trump, and so Durham got to seize WaPo’s records.

Billy Barr has been hiding other legal process against journalists

Given the disclosure that Barr approved a request targeting the WaPo about five months ago and that under Barr DOJ used a Title III wiretap in a leak investigation (albeit targeting the known leaker), it’s worth noting one other piece of oversight that has lapsed under Barr.

In the wake of Jeff Sessions declaring war on leaks in 2017 (and, probably, the leak in question here), Ron Wyden asked Jeff Sessions whether the war on leaks reflected a change in the new media guidelines adopted in 2015.

Wyden asked Sessions to answer the following questions by November 10:

  1. For each of the past five years, how many times has DOJ used subpoenas, search warrants, national security letters, or any other form of legal process authorized by a court to target members of the news media in the United States and American journalists abroad to seek their (a) communications records, (b) geo-location information, or (c) the content of their communications? Please provide statistics for each form of legal process.
  2. Has DOJ revised the 2015 regulations, or made any other changes to internal procedures governing investigations of journalists since January 20, 2017? If yes, please provide me with a copy.

In response, DOJ started doing a summary of the use of legal process against journalists for each calendar year. For example, the 2016 report described the legal process used against Malheur propagandist Pete Santilli. The 2017 report shows that, in the year of my substantive interview with FBI, DOJ obtained approval for a voluntary interview with a journalist before the interview because they, “suspected the journalist may have committed an offense in the course of newsgathering activities” (while I have no idea if this is my interview, during the interview, the lead FBI agent also claimed to know the subject of a surveillance-related story I was working on that was unrelated to the subject of the interview, though neither he nor I disclosed what the story was about). The 2017 report also describes obtaining Ali Watkins’ phone records and DOJ’s belated notice to her. The 2018 report describes getting retroactive approval for the arrest of someone for harassing Ryan Zinke but who claimed to be media (I assume that precedent will be important for the many January 6 defendants who claimed to be media).

While I am virtually certain the reports — at least the 2018 one — are not comprehensive, the reports nevertheless are useful guidelines for the kinds of decision DOJ deems reasonable in a given year.

But as far as anyone knows, DOJ stopped issuing them under Barr. Indeed, when I asked Raimondi about them, he didn’t know they existed (he is checking if they were issued for 2019 and 2020).

So we don’t know what other investigative tactics Barr approved as Attorney General, even though we should.

Dick Cheney Gets Judy Miller to Serve as His Cut-Out, Again

When Judy Miller wrote a piece for the WSJ pitching her new autobiographical novel, she was very specific about what she had said and not said with Dick Cheney and when.

I have never met George W. Bush. I never discussed the war with Dick Cheney until the winter of 2012, years after he had left office and I had left the Times.

Particularly given that the only question of those I posed for my book that Miller did not answer was whether she saw Cheney on the trip to Aspen that she used to explain Scooter Libby’s Aspen letter, I find her admission that she did and does speak to Cheney — though had not, about the war — telling. (Remember, too, that Cheney did not release journalists he had spoken to to reveal him as a source in the way everyone else in the Executive Branch did.)

Miller goes on to present a nonsense story about how Fitzgerald misled her and caused her to testify incorrectly, falsely testifying to the grand jury that Libby had told her Plame was at the CIA back in June. It doesn’t make sense — and doesn’t do anything to undermine the other evidence that would have been sufficient to convict Libby, notably Libby’s own notes and David Addington’s testimony as well as a second, far more important, meeting between Libby and Miller just days before Novak outed Plame.

Maybe Miller just has no fucking clue what got presented at the trial?

But having presented a flimsy excuse to question the verdict against Libby, Miller has presented others with an opportunity to point to another detail she includes in her book: that Fitzgerald offered to drop the charges against Libby if he would testify against Cheney. Again, that’s not surprising. Libby’s lies served to cover up Cheney’s orders to leak stuff to Judy Miller (not in the meeting she newly focuses on, but in the meeting during the week of Novak’s article).

Enter Dick Cheney.

Miller also writes in her book that she learned from Libby’s attorney that Fitzgerald “had twice offered to drop all charges against Libby if his client would ‘deliver’ Cheney to him.”

Cheney says that shows what Fitzgerald’s real intentions were in going after Libby.

“It was a runaway special prosecutor who, I think, manipulated the system because he was trying to make a name for himself,” Cheney said. “I apparently was the target based upon the fact that he went to Scooter’s lawyer and told him if Scooter would testify against me he’d drop the charges against Scooter. I hadn’t been accused of anything. I hadn’t done anything.”

This, of course, is bullshit. The key issue at the trial — the key reason why Libby’s claims about his lies were important — had to do with his own notes reflecting Dick Cheney ordering Libby to leak classified information to Judy Miller, information that Cheney hung Libby out to dry on in his first interview with Fitzgerald.  Nevertheless, Cheney uses it to proclaim Libby innocent, which he can’t be if Cheney’s own interview with Fitzgerald was honest.

Either Libby lied to the grand jury, or Cheney lied to Fitzgerald and possibly, in his unreleased second interview, to the grand jury. One of them lied. Probably, both did.

Whatever the evidence against Dick Armitage is (and the evidence shows that both journalists who learned of Plame’s CIA ties from him asked inexplicably leading questions to elicit that response, and both journalists had spoken with OVP before they spoke with Armitage), the evidence is also that Dick Cheney ordered Libby to leak stuff and the record shows (and nothing from Miller’s book discussed thus far, at least, contradicts) that Libby included Plame’s identity in that.

By the time Fitzgerald subpoenaed Miller, Cheney may not have been accused of anything, but he had been required to give a second, sworn interview with Fitzgerald that could be introduced to the grand jury because his first interview differed in dramatic ways from Libby’s grand jury appearances. It was that interview, by all appearances, that led to the Judy subpoena.

Cheney doesn’t  hide that he’s still trying to get the guy who covered up for him a pardon. Judy’s book is just the convenient, albeit factually laughable, claim on which he plans to hang that effort.

Whatever information Judy laundered for the Administration back in 2002 (and Libby, at least, claimed it was Condi Rice who did such laundering before the war, not him or Cheney, which is not entirely inconsistent with Miller’s currently operative claims) and far more obviously after it, she is back to serving as Cheney’s cut-out now.

In nothing yet made public does Judy deny serving as Cheney’s cut-out. Which is good, because the whole effort seems to be proof that she continues to do so.

DNA Sequence Analysis Shows Ebola Outbreak Naturally Ocurring, Not Engineered Virus

In an electron microscope image that has been colorized, Ebola virus particles in blue are being extruded from an African Green Monkey kidney cell in yellow. Photo produced by  National Institute of Allergy and Infectious Diseases, NIH.

In an electron microscope image that has been colorized, Ebola virus particles in blue are being extruded from an African Green Monkey kidney cell in yellow, grown in a laboratory cell culture system. Photo produced by National Institute of Allergy and Infectious Diseases, NIH.

I had really hoped I wasn’t going to have to write this post. Yesterday, Marcy emailed me a link to a Washington’sBlog post that breathlessly asks us “Was Ebola Accidentally Released from a Bioweapons Lab In West Africa?” Sadly, that post relies on an interview with Francis Boyle, whom I admire greatly for his work as a legal scholar on bioweapons. My copy of his book is very well-thumbed. But Boyle and WashingtonsBlog are just wrong here, and it takes only seconds to prove them wrong.

Shortly after getting the email and reading the blog post, I sent out tweets to this summary and this original scientific report which describe work on DNA analysis of Ebola isolated from multiple patients during the current outbreak. That work conclusively shows that the virus in the current outbreak is intimately related to isolates from previous outbreaks with changes only on the order of the naturally occurring mutation rate known for the virus. Further, these random mutations are spread evenly throughout the short run of the virus’s genes and there are clearly no new bits spliced in by a laboratory. Since I wasn’t seeing a lot of traction from the Washington’sBlog post, I was going to let it just sit there.

I should have alerted last night when I heard my wife chuckling over the line “It is difficult to describe working with a horse infected with Ebola”, but I merely laughed along with her and didn’t ask where she read it.

This morning, while perusing the Washington Post, I saw that Joby Warrick has returned to his beat as the new Judy Miller. Along with the line about the Ebola-infected horse, Warrick’s return to beating the drums over bioweapons fear boasts a headline that could have been penned by WashingtonsBlog: “Ebola crisis rekindles concerns about secret research in Russian military labs“.

Warrick opens with a re-telling of a tragic accident in 1996 in a Soviet lab where a technician accidentally infected herself with Ebola. He uses that to fan flames around Soviet work in that era:

The fatal lab accident and a similar one in 2004 offer a rare glimpse into a 35-year history of Soviet and Russian interest in the Ebola virus. The research began amid intense secrecy with an ambitious effort to assess Ebola’s potential as a biological weapon, and it later included attempts to manipulate the virus’s genetic coding, U.S. officials and researchers say. Those efforts ultimately failed as Soviet scientists stumbled against natural barriers that make Ebola poorly suited for bio­warfare.

The bioweapons program officially ended in 1991, but Ebola research continued in Defense Ministry laboratories, where it remains largely invisible despite years of appeals by U.S. officials to allow greater transparency. Now, at a time when the world is grappling with an unprecedented Ebola crisis, the wall of secrecy surrounding the labs looms still larger, arms-control experts say, feeding conspiracy theories and raising suspicions.

/snip/

Enhancing the threat is the facilities’ collection of deadly germs, which presumably includes the strains Soviet scientists tried to manipulate to make them hardier, deadlier and more difficult to detect, said Smithson, now a senior fellow with the James Martin Center for Nonproliferation Studies, a research institute based in Monterey, Calif.

“We have ample accounts from defectors that these are not just strains from nature, but strains that have been deliberately enhanced,” she said.

Only when we get three paragraphs from the end of the article do we get the most important bit of information to be gleaned from the Soviet work on Ebola:

Ultimately, the effort to concoct a more dangerous form of Ebola appears to have failed. Mutated strains died quickly, and Soviet researchers eventually reached a conclusion shared by many U.S. bio­defense experts today: Ebola is a poor candidate for either biological warfare or terrorism, compared with viruses such as smallpox, which is highly infectious, or the hardy, easily dispersible bacteria that causes anthrax.

Note also that, in order to make Ebola more scary, Warrick completely fails to mention the escape of weaponized anthrax from a Soviet facility in 1979, infecting 94 and killing 64, dwarfing the toll from the two Ebola accidents.

And lest we calm down about Ebola and the other bioweapons the Soviets worked on, Warrick leaves us this charming tidbit to end the article: Read more

Peter Baker, Meat Grinder for Bush

Screen shot 2013-10-10 at 10.45.46 AM

In the NYT, Peter Baker presents his version of George Bush’s decision not to pardon Scooter Libby as the best pitch for his new book, Days of Fire, Bush and Cheney in the White House. Given that the piece is not at all newsworthy (and as I’ll show, Baker’s version of it is badly flawed), I suppose Baker thought that Bush’s refusal to fulfill Cheney’s request supports Baker’s contention that Bush, not Cheney, was the dominant player in the relationship.

One piece of evidence Baker provides to support that contention is this quote from Alan Simpson.

Cheney “never did anything in his time serving George W. that George W. didn’t either sanction or approve of,” said Alan Simpson, a former Republican senator from Wyoming and a close friend of Cheney’s.

If Baker believes Simpson’s claim, however, then his entire reading of Cheney’s involvement in leaking Valerie Plame’s identity is wrong (and not just because he quotes Liz Cheney pretending PapaDick had no role in the leak).

Baker provides dialogue suggesting that Bush and certain lawyers — Baker identifies them as White House Counsel Fred Fielding and his Deputy William Burck — debated whether Libby was protecting Cheney.

“All right,” the president said when the lawyers concluded their assessment. “So why do you think he did it? Do you think he was protecting the vice president?”

“I don’t think he was protecting the vice president,” Burck said.

Burck figured that Libby assumed his account would never be contradicted, because prosecutors could not force reporters to violate vows of confidentiality to their sources. “I think also that Libby was concerned,” Burck said. “Because he took to heart what you said back then: that you would fire anybody that you knew was involved in this. I just think he didn’t think it was worth falling on the sword.”

Bush did not seem convinced. “I think he still thinks he was protecting Cheney,” the president said. If that was the case, then Cheney was seeking forgiveness for the man who had sacrificed himself on his behalf.

Baker implies that Bush’s conclusion — that Libby believed he was protecting Cheney — convinced himself it would not be ethical to pardon Libby based on Cheney’s insistence. (Note, whatever you and I were paying Burck, it was far too much, because his logic as portrayed here is pathetically stupid.)

That would imply that Bush believed — Burck’s shitty counsel to the contrary — that Cheney played some role in the leak.

But Alan Simpson, who truly does know Cheney well, says Cheney never did anything without either Bush’s sanction or approval. Which would imply that whatever Cheney did to leak Plame’s identity, he did with the approval of Bush.

Which brings us to the other gaping hole in Baker’s account (aside from his complete misunderstanding of the evidence surrounding the leak itself). Baker uses the word “lawyers” 11 times in this excerpt, including (but not limited to) the following.

In the final days of his presidency, George W. Bush sat behind his desk in the Oval Office, chewing gum and staring into the distance as two White House lawyers briefed him on the possible last-minute pardon of I. Lewis Libby.

“Do you think he did it?” Bush asked.

“Yeah,” one of the lawyers said. “I think he did it.”

[snip]

At the time, Bush said publicly that he was not substituting his judgment for that of the jury. So how would he explain a change of mind just 18 months later? That was the argument Ed Gillespie, the president’s counselor, made to Cheney when he came to explain why he was advising Bush against a pardon. “On top of that, the lawyers are not making the case for it,” Gillespie told Cheney, referring to the White House attorneys reviewing the case for Bush. “We’ll be asked, ‘Did the lawyers recommend it?’ And if the lawyers didn’t, it’s going to be hard to justify for the president.”

[snip]

The following Monday, Bush had his final, definitive meeting with the White House lawyers, ending any possibility of reconsideration. There would be no pardon for Libby. [my emphasis]

Lawyers lawyers lawyers. Baker emphasizes how important the counsel of Nixon’s old lawyer and his apparently half-witted deputy were to Bush’s decision, and he implies, with his description of which lawyers Ed Gillespie referred to, that those lawyers were limited to official White House lawyers.

Nowhere — at least nowhere in this excerpt — does Baker mention that Bush also consulted with his own lawyer, Jim Sharp, as reported by Time 4 years ago.

Meanwhile, Bush was running his own traps. He called Jim Sharp, his personal attorney in the Plame case, who had been present when he was interviewed by Fitzgerald in 2004. Sharp was known in Washington as one of the best lawyers nobody knew.

[snip]

While packing boxes in the upstairs residence, according to his associates, Bush noted that he was again under pressure from Cheney to pardon Libby. He characterized Cheney as a friend and a good Vice President but said his pardon request had little internal support. If the presidential staff were polled, the result would be 100 to 1 against a pardon, Bush joked. Then he turned to Sharp. “What’s the bottom line here? Did this guy lie or not?”

The lawyer, who had followed the case very closely, replied affirmatively.

Yet neither Time then nor Baker now considered the implications of Bush consulting with the lawyer who knew what questions he got asked when Pat Fitzgerald interviewed the President.

Those questions would have included whether — as Libby’s grand jury testimony recorded Cheney as having claimed — the President declassified the information, including Plame’s identity, Cheney ordered Libby to leak to Judy Miller. They also would have included why — as the note above shows — Cheney almost wrote that “the Pres” had ordered Libby to stick his neck in a meat grinder and rebut Joe Wilson, before he cross out the reference to the President and used the passive voice instead. They would have also included questions about Bush’s public comments about rebutting Wilson in meetings. (I laid out these details in this post.)

Peter Baker pretends that Bush had no personal knowledge of the leak or — more importantly — of Fitzgerald’s reasons for suspecting Cheney ordered the leak. He somehow forgets that Bush consulted his own lawyer, along with Fielding and Fielding’s lackey, either to interpret what Libby did or, more likely, what implications pardoning Libby would have for his own legal exposure.

Which is pretty bizarre. While including these details might make Bush look like a self-interested asshole, they are the only details that make sense if — as Baker suggests with the Simpson quote — whatever Cheney did that required Libby’s protection, he did with Bush’s sanction.

Joby Warrick Is the New Judy Miller

Poor Joby Warrick. With Judy Miller so disgraced that Fox News had to issue a “she has nothing to apologize for” press release when they hired her back in 2008, Joby drew the short straw yesterday and was assigned to transcribe the hyped bullshit concerns arising from Israel Syria’s neighbors that Syria might be contemplating use of biological weapons. The entire Warrick article needs to be read to get a full feel for its credulous recitations of completely unfounded speculation being passed off as actual intelligence, but I will stick with just a few paragraphs. Warrick opens by making a completely baseless claim:

Last month’s alleged chemical attack near Damascus has re­focused attention on Syria’s 30-year-old biological weapons research and raised concerns about whether the government there could activate an effort to make a weapon.

Really, Joby? Aside from those “intelligence officials in two Middle East countries” who fed you this material, has anybody else voiced a concern that Syria is contemplating use of bioweapons, or even could produce bioweapons if they wanted to?

Even Warrick has to admit that any work on bioweapons in Syria is now over 30 years old. But that doesn’t deter Warrick and the spooks whispering in his ear:

Syria’s bioweapons program, which U.S. officials believe has been largely dormant since the 1980s, is likely to possess the key ingredients for a weapon, including a collection of lethal bacteria and viruses as well as the modern equipment needed to covert them into deadly powders and aerosols, according to U.S. and Middle Eastern officials and weapons experts.

Wow. the “US and Middle Eastern officials and weapons experts” guiding Warrick’s hands on the keyboard as he types are saying that despite not working on bioweapons for thirty years or so, they have the deadly organisms and equipment that would be needed to make “deadly powders and aerosols”.

Warrick and the spies who feed him have absolutely nothing on which to base this accusation. Let’s check a neutral source on what the real status of biotechnology capability in Syria is and whether it can be rapidly adapted to bioweapons. The Nuclear Threat Initiative provides a report on Syria’s potential bioweapons capability that was last updated in February of this year. They come to very different conclusions than Warrick (emphasis added):

In the past, unclassified statements by U.S. officials occasionally claimed reason to suspect Syria of maintaining an offensive BW program. [2] However, in contrast to discussions of Syrian chemical warfare (CW) capabilities, such claims have not included any details on the size and scale of Syria’s potential BW program, and are not presented alongside supporting evidence. Instead, discussions on this topic have focused on speculative extrapolations of Syrian dual-capable industry and on Syrian political motivations. Such analysis can be neither detailed nor comprehensive. Although the existence of a biotechnology industrial base would suggest that Syria has some indigenous expertise useful for developing a biological weapons capability, it does not imply and cannot confirm the existence of an offensive biological weapons program. Furthermore, given that Israel, a state that is understood to possess a nuclear arsenal and continues to occupy the Golan Heights, remains Syria’s primary security concern, and given the risk of “blowback” when deploying biological weapons, such weapons would be of questionable tactical desirability from a Syrian perspective. While public sources on the nature of Syria’s chemical and nuclear programs are limited, even less exists about Syria’s biological program, and “there is no hint of its existence from open sources.” [3]

The report goes on to detail what Syria’s biological industries do (again, emphasis added): Read more

The AP Grab: NSL versus Subpoena

Update: In his letter responding to AP’s complaints, Deputy Attorney General James Cole says these were subpoenas. Cole tries to argue the scope of the subpoena was fair. But what he doesn’t explain is why the government didn’t give the AP notice or an opportunity to turn over the contacts voluntarily.

I want to return to a question I introduced in my post describing DOJ’s grab of call records from 20 AP phone lines.

The assumption has been that DOJ subpoenaed these call records. While that’s probably right, I still think it’s possible DOJ got them via National Security Letter, which DOJ has permitted using to get journalist contacts in national security investigations since fall 2011. I’ll grant that AP President Gary Pruitt mentions subpoenas twice in his letter, once specifically in connection with DOJ’s grab and once more generally.

That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.

The sheer volume of records obtained, most of which can have no plausible connection to any ongoing investigation, indicates, at a minimum, that this effort did not comply with 28 C.F.R. §50.10 and should therefore never have been undertaken in the first place. The regulations require that, in all cases and without exception, a subpoena for a reporter’s telephone toll records must be “as narrowly drawn as possible.’’ This plainly did not happen. [my emphasis]

But the entire point of Pruitt’s letter is to call attention to the way in which DOJ did not honor the spirit of its media guidelines, which are tied to subpoenas, not NSLs. That’s what the Domestic Investigations and Operations Guide says explicitly (PDF 166) when it talks about using NSLs with journalists: when using NSLs, the rules don’t apply.

Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]

For a variety of reasons, I think it possible the AP doesn’t actually know how DOJ got its reporters’ contact information. And thus far, the most compelling argument (one Julian Sanchez made) that DOJ used a subpoena is that they did ultimately disclose the grab to the AP; with NSLs they wouldn’t have to do that, at least certainly not in the same time frame.

But Pruitt’s emphasis is sort of why I’m interested in this question: either DOJ used a subpoena and in so doing implicitly claims several things about its investigation, or DOJ used an NSL as a way to bypass all those requirements (and use this as a public test case of broad new self-claimed authorities). Both could accomplish the same objective — getting call records with a gag order — but each would indicate something different about how they’re approaching this investigation.

Here are DOJ’s own regulations about when and how they can subpoena a journalist or his call records. Some pertinent parts are:

(b) All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.

(d) Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.

(g)(1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.

(g)(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days. [my emphasis]

US Attorney Ronald Machen statement about the grab largely echoes those parts of the regulations (though somehow he forgot to mention that “subpoenas should be as narrowly drawn as possible”).

We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations. Those regulations require us to make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media. We must notify the media organization unless doing so would pose a substantial threat to the integrity of the investigation. Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.

So either DOJ used an NSL, which would give them a longer gag, fewer express limits on the scope of the request, and zero expectation of giving notice beforehand (in addition, obtaining NSLs from journalists in national security cases doesn’t appear to require Attorney General sign-off). In which case Machen is playing the same kind of word games the DIOG plays, acknowledging there are regulations the spirit of which DOJ appears to have violated.

Or Machen maintains the following about the grab:

  • DOJ has already checked the US person call records of the people known to be read into the UndieBomb plot and not found any obviously calls or emails implicating the journalists involved in the story and either hasn’t been able to access or hasn’t found any obvious clues in the potential Saudi, Yemeni, and British people read into the operation (note, some Saudis were on the record on this within days and Yemenis also appear to have leaked it).
  • Notifying the AP that DOJ was going to go get journalist contact information for two months, in an investigation that has been widely publicized for an entire year, would pose some threat to the investigation. Normally, such a claim is usually based on the premise that revealing the investigation at all would alert the targets who would otherwise not know about it, but that’s obviously not what’s going on here, because this has been one of the most public leak investigations in recent years.

Read more

Cheney’s Thugs Win the Prize for Leak Hypocrisy

I wasn’t much interested in Mitt Romney’s latest efforts to change the narrative from the evil things he profited off of at Bain Capital and the tax havens he stashed the money he got as a result. Not only don’t I think journalists will be all that interested in Mitt’s claim that Obama’s White House is a leaky sieve. But I’m not about to defend the Most Fucking Transparent™ White House in Fucking History against such accusations.

Until Cheney’s thugs start leading the attack.

Such as Eric Edelman, who says we need “change” because Obama’s Administration leaked details of the Osama bin Laden raid.

Eric Edelman is this guy:

Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy [Edelman] and discussed the article. That official asked LIBBY whether information about Wilson’s trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line

Four days after Edelman made the suggestion to leak information about Joe Wilson’s trip, Scooter Libby first revealed to Judy Miller that Valerie Plame worked at the CIA.

But Edelman is not the only one of Cheney’s thugs bewailing leakers: (h/t Laura Rozen, who follows BabyDick so I don’t have to)

Romney today at VFW on contemptible conduct of Obama White House leaking classified info for political gain. Must read. http://tinyurl.com/bw4s4lt

Now, to be fair to dear BabyDick, unlike Edelman she has not been directly implicated in her father’s deliberate exposure of a US CIA officer working to stop nuclear proliferation. Unlike Edelman, she was not protected from legal jeopardy by Scooter Libby’s lies.

But she did co-author her father’s book, which was a whitewash of his treachery (even if it did reveal that Cheney had a second interview with Pat Fitzgerald, one treated as a grand jury appearance, just around the time Fitzgerald subpoenaed Judy Miller. BabyDick Cheney is complicit in the lies the Cheney thugs have used to hide what a contemptible leak for political gain the Plame leak was.

And now she thinks she should lecture others about far less treacherous leaks?

Obama DOJ Claims Journalists Are Like Drug Users

HuffPo has a good write-up of Friday’s Fourth Circuit hearing on whether James Risen is entitled to a reporter’s privilege in the Jeff Sterling case. It describes Judge Robert Gregory challenging DOJ appellate lawyer Robert Parker’s claims that there is no privilege at all. And while Charlie Savage described the two other judges as harder to read, both stories noted Albert Diaz calling Branzburg v. Hayes–the SCOTUS precedent–“clear as mud.”

I’m particularly interested in the way Gregory pushed back against Parker. He made a distinction between the crime that reporter Paul Branzberg witnessed–the preparation and consumption of hash–for which he was called to testify to a grand jury, and what Risen allegedly witnessed.

“I don’t think there would be a balancing test because there’s no privilege in the first place,” Parker said. “The salient point is that Risen is the only eyewitness to this crime.”

Gregory told Parker that the Supreme Court’s Branzburg v. Hayes decision — which Parker cited as precedent for forcing journalists to testify when they had witnessed a crime — involved the witnessing of a different crime, “not the disclosure itself.”

Parker said what Risen did was “analogous” to a journalist receiving drugs from a confidential source, and then refusing to testify about it.

“You think so?” Gregory asked, clearly unconvinced.

“The beneficiary of the privilege is the public … the people’s right to know,” Gregory said. “We need to know what the government is doing,” he noted. “The king never wants anyone to disclose.”

The challenge is interesting as a threshold level, because the Obama Administration has built a lot of their attacks against leaks on the notion that journalists are witnesses to a crime (Patrick Fitzgerald obtained Judy Miller’s testimony on the same basis, though he did so though an application of the balancing test that Parker wants to throw out altogether).

Obama’s DOJ has gone further, though: they appear to have approved the use of National Security Letters to obtain journalists’ contacts in the most recent update of the DIOG. That would appear to allow them to learn the identity of sources journalists phone or email without any judicial review. Which in turn allows DOJ to determine a crime has been committed and based on that, eliminate journalists’ confidentiality because they were “witnesses” to what DOJ has unilaterally determined is a crime.

If Gregory rejected the government’s argument based on leaks being a different kind of crime, it would not only protect Risen’s sources for his MERLIN story, but it would mean the government would have to curtail its use of NSLs to get journalist contacts (at least in the Fourth Circuit).

But this passage is revealing for another reason. As I said above, Branzberg was subponaed because he witnessed the use of illegal drugs. But Parker, in constructing his analogy, said receiving classified information from a source is like receiving illegal drugs, not just witnessing them. Note what that misapplication of the analogy does: It is not illegal to witness the use of drugs, but it is illegal to possess illegal drugs.

In other words, though no law supports such a suggestion, DOJ is now arguing that journalists who receive classified information are themselves criminals, just like those who possess hash.

Someone’s smoking something awful at DOJ.

Judy Miller, Barabara Starr, and an Influx of Intelligence

I’m going to disappoint Jim by not dedicating a full post to Judy Miller’s graceless rant about the AP’s Pulitzer win, in which she whines that the AP hasn’t taken Ray Kelly’s insistence that his NYPD’s spying is legal seriously enough. I already had to fisk Miller’s credulous regurgitation of Ray Kelly’s defense of the NYPD here and then remind her that journalists should be in the business of sorting out false claims from true ones here. Given her past failures to write credibly on the AP’s NYPD series, I trust no one will make the mistake of doing anything but dismissing everything she has to say about the AP series.

But since I’ve already started a post about mouthpieces for those in power, maybe I should take a look at what Miller’s close kin, Barbara Starr, had to say about expanded drone strikes in Yemen.

The lead in Greg Miller’s story on this emphasized how little intelligence we would have on the expanded drone strikes.

The CIA is seeking authority to expand its covert drone campaign in Yemen by launching strikes against terrorism suspects even when it does not know the identities of those who could be killed, U.S. officials said.

Securing permission to use these “signature strikes” would allow the agency to hit targets based solely on intelligence indicating patterns of suspicious behavior, such as imagery showing militants gathering at known al-Qaeda compounds or unloading explosives.

Compare that with the headline and lead in Barbara Starr’s version.

Intel influx leads to increased U.S. strikes in Yemen

The increased pace of counterterrorism strikes in Yemen by U.S. drones and aircraft is a result of what U.S. military and intelligence officials describe as improved intelligence about the leadership of the al Qaeda movement in that country.

Read more

As Bush Did with Judy Miller, Obama Insta-Declassifies for David Ignatius

One more point about the David Ignatius wankfest today.

In his story pitching OBL as a still-ambitious terrorist rather than an out-of-touch idiot, David Ignatius claimed the documents he based his article on had already been declassified.

The scheme is described in one of the documents taken from bin Laden’s compound by U.S. forces on May 2, the night he was killed. I was given an exclusive look at some of these remarkable documents by a senior administration official. They have been declassified and will be available soon to the public in their original Arabic texts and translations. [my empahsis]

But National Security Council spokesperson Tommy Vietor says that’s not yet the case.

A White House spokesman confirmed that the documents found in the raid are in a declassification process that is “still ongoing,” and National Security Council spokesman Tommy Vietor said it “would likely be a few months before they’re fully available” to the media and public. (The CIA had no comment.) [my emphasis]

Either these documents are declassified, in which case the White House should be handing them out to anyone who asks, or they’re not yet declassified, in which case, someone should be prosecuted for handing them to Ignatius.

The most likely explanation, however, is that the Administration is playing the same game the Bush Administration played with Judy Miller, sharing still-classified documents with a reporter who will spin things in a favorable light, so as to pre-empt any response a
more open assessment of the documents will have. That the Obama Administration is doing it to support his reelection and not an illegal war doesn’t make the ploy any less cynical.