The Other Scandal

In my recent Soapbox, I excoriate Republicans for trying to drum up scandal, any scandal, in order to take down the presidency. (It's an old GOP trick, of course.) One "scandal" – or controversy, maybe – that I didn't touch is the one revolving around the Department of Justice's seizing AP and Fox News phone records in its investigation of government sources leaking classified information. That's because it's pretty d*mn complicated and deserves its own...well...blog post

The issue? Especially in the case of the AP records, the government's subpoena was so broad -- it covered several months of records, and many of reporters and phone calls having nothing to do with the "leaked" story -- that many saw it as a tactic of intimidation by the government, and the hubbub raised by civil liberties advocates over the incident raised questions of the freedom of the press to report stories:

The media's purpose is to keep the public informed and it should be free to do so without the threat of unwarranted surveillance. The Attorney General must explain the Justice Department's actions to the public so that we can make sure this kind of press intimidation does not happen again.

But here's the deal.

The government's seizure of the phone records was completely legal. In a post roasting the administration's tactics, noted civil liberty advocate Glenn Greenwald noted as much:

There has long been concern about the DOJ's snooping into the communications which journalists have with their sources precisely because the DOJ's power to obtain phone data and other sensitive records in secret is now so sweeping.

Those powers granted the administration and the Department of Justice were granted by Congress. That is, this is really a legislative issue. If Congress really doesn't like how the administration is using its power, it should change the law.

*crickets*

Second, the press has a responsibility to not report classified information if it would endanger U.S. national security. In the case of Fox News' James Rosen, it seems his reporting may have been irresponsible, and the leaker of the information probably should be prosecuted. Walter Pincus:

It wasn't the substance of the leaked info that most deeply concerned the intelligence community. Rather it was that Rosen's story alerted the North Koreans that the United States had penetrated their leadership circle. A second concern was how quickly someone with access to TS/SCI information — a limited, top-level security classification applied primarily to electronically intercepted messages — had leaked it.

As Rosen noted in his article, the CIA had "only learned of North Korea's plans this week" and from "sources inside North Korea." In short, the story warned Pyongyang's counterintelligence specialists that the United States had probably obtained conversations or messages of top-level North Korean officials by electronic intercepts or through agents.

The AP incident, on the other hand, was an animal of a different stripe. The New York Times' Andrew Rosenthal:

Here is what actually happened: The A.P....had a story about the foiled plot and, as per usual, gave the administration a heads-up. National security officials asked The A.P. to hang onto the story for a while because publishing it at that time would have posed some unknown danger.

That's fair enough. Any editor who's worked with national security-related exclusives has had that happen. When I was Washington Editor and then Foreign Editor for The Times, I was involved in decisions to hold stories. The most basic imperative is not to publish articles that would put actual soldiers' lives at risk. There are also more intangible kinds of reasons for holding a story — but letting the government avoid embarrassment is most definitely not among them.

According to an article in The Washington Post, The A.P.'s staff sat on their scoop for five days in May 2012 at the request of the C.I.A., then were asked to hold off for one day more — not because of additional security concerns, but because the administration wanted to announce the successful counter-terrorism effort itself.

The A.P. declined, and published.

Weak sauce, to say the least.

That's not to say that the Republicans circling this story aren't exploitative opportunists. They are. Take Michigan Republican Candance Miller's op-ed on the DoJ's seizure of the phone records of Fox News' James Rosen:

Regardless of the merits of the prosecution, the treatment of Rosen — and the overall record of the Obama administration in pursuing alleged national security leaks — stands in sharp contrast to the practice of previous administrations, Republican and Democrat. During the Bush administration, the New York Times and the Washington Post both reported on highly sensitive intelligence practices (involving surveillance of suspected terrorist banking records and interrogations) in ways that clearly compromised the nation's ability to protect our allies and informants and gather crucial information on terrorist networks. Such national security implications were not readily apparent in Rosen's reporting.

The shorter Miller: it's only okay when a Republican does this kind of thing. 

If you don't remember the details of the Bush administration's policies, you might not see why this breezy statement is so reprehensible. To wit: a Bush policy Miller dubs "crucial" to U.S. security -- and implies Americans have no right to know about -- includes U.S. torture of terror suspects.

And let's not forget that it was Miller and the GOP that supported warrantless wiretapping of U.S. citizens.

But instead of attacking the issue at its source -- the powers granted the administration -- Republicans are playing "gotcha" with DoJ head Eric Holder, and even lefties are calling for Holder's resignation because the DoJ's tactics are so clumsy and broad and questionable.

In essence, the media, critics, partisan hacks are all demanding the same thing: that the administration restrain itself. 

That's because about a decade ago Bush administration legal experts (thanks John Yoo!) declared that the executive branch could do anything -- anything! -- if it was acting in the interest of national security. That meant domestic spying, monitoring of all of your Internet browsing behavior, kidnapping foreign nationals, scrapping of habaeus corpus, torture, starting wars.

And Congress did nothing to oppose this. And the media made little fuss over it. So now, here we are.