Department of Justice asks, “what is this First Amendment you speak of?”
by digby
The AP has a bit of a bone to pick with the Department of Justice:
Last Friday afternoon, AP General Counsel Laura Malone received a letter from the office of United States Attorney Ronald C. Machen Jr. advising that, at some unidentified time earlier this year, the Department obtained telephone toll records for more than 20 separate telephone lines assigned to the AP and its journalists. The records that were secretly obtained cover a full two-month period in early 2012 and, at least as described in Mr. Machen’s letter, include all such records for, among other phone lines, an AP general phone number in New York City as well as AP bureaus in New York City, Washington, D.C., Hartford, Connecticut, and at the House of Representatives. This action was taken without advance notice to AP or to any of the affected journalists, and even after the fact no notice has been sent to individual journalists whose home phones and cell phone records were seized by the Department.
There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.
I don’t know for sure what the specific reasons for this were but Emptywheel pointed out immediately the the DOJ has claimed a right to do warrantless surveillance since 2011. And it’s likely that the case she discusses in her post is the one that precipitated this AP surveillance:
The CIA thwarted an ambitious plot by al-Qaeda’s affiliate in Yemen to destroy a U.S.-bound airliner using a bomb with a sophisticated new design around the one-year anniversary of the killing of Osama bin Laden, The Associated Press has learned.
The plot involved an upgrade of the underwear bomb that failed to detonate aboard a jetliner over Detroit on Christmas 2009. This new bomb was also designed to be used in a passenger’s underwear, but this time al-Qaeda developed a more refined detonation system, U.S. officials said.
The FBI is examining the latest bomb to see whether it could have passed through airport security and brought down an airplane, officials said. They said the device did not contain metal, meaning it probably could have passed through an airport metal detector. But it was not clear whether new body scanners used in many airports would have detected it.
The would-be suicide bomber, based in Yemen, had not yet picked a target or bought a plane ticket when the CIA stepped in and seized the bomb, officials said. It’s not immediately clear what happened to the alleged bomber.
White House spokeswoman Caitlin Hayden said President Barack Obama learned about the plot in April and was assured the device posed no threat to the public.
“The president thanks all intelligence and counterterrorism professionals involved for their outstanding work and for serving with the extraordinary skill and commitment that their enormous responsibilities demand,” Hayden said.
The operation unfolded even as the White House and Department of Homeland Security assured the American public that they knew of no al-Qaeda plots against the U.S. around the anniversary of bin Laden’s death. The operation was carried out over the past few weeks, officials said.
“We have no credible information that terrorist organizations, including al-Qaeda, are plotting attacks in the U.S. to coincide with the anniversary of bin Laden’s death,” White House press secretary Jay Carney said on April 26.
On May 1, the Department of Homeland Security said, “We have no indication of any specific, credible threats or plots against the U.S. tied to the one-year anniversary of bin Laden’s death.”
The AP learned about the thwarted plot last week but agreed to White House and CIA requests not to publish it immediately because the sensitive intelligence operation was still under way. Once officials said those concerns were allayed, the AP decided to disclose the plot Monday despite requests from the Obama administration to wait for an official announcement Tuesday.
U.S. officials, who were briefed on the operation, insisted on anonymity to discuss the case, which the U.S. has never officially acknowledged.
Not that it matters, since the government spying on the press this way is clearly antithetical to the principles of the first amendment, but I’m going to guess that we’ll see a scandal unfold that asserts this was entirely political and that the real motive was that the White House was looking for pay back for the AP ruining its terrorism marketing plan rather than a scandal based on legitimate outrage that the DOJ conducted a witchhunt for leaks. At this point I assume the latter was the real motive, but the former is what fits in with the Benghazi! narrative. (You know — the one that says the administration that would stop at nothing to protect its false image as a scourge of terrorism?) That’s what will get the right wing lizard brain jumping and the left wing on full defense. But the real issue here is the fact that the DOJ has claimed these unilateral powers to shut down leaks — and is using them.
Either way, this is a mess and I think it’s entirely possible that it could take down Eric Holder. Hard to know, but in this overheated atmosphere, heads inevitably start to roll.
Update: It appears that an administrative subpoena was issued for the records rather than a national security letter. In case you are wondering what an administrative subpoena is, Wikipedia has an excellent definition:
An administrative subpoena under U.S. law is a subpoena issued by a federal agency without prior judicial oversight. Critics claim that administrative subpoena authority is a violation of the Fourth Amendment to the United States Constitution while proponents state that it provides a valuable investigative tool.
Update II:
Actually nobody knows at this point what the legal mechanism was.
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