Tag: Barck Obama

Both CIA Director John Brennan and White House Chief of Staff, Denis McDonough should be fired for violating the constitutional separation of powers in the Senate Select Committee on Intelligence’s investigation into the Central Intelligence Agency’s spying on congressional aids who were looking into the CIA’s roll in torture. Now The CIA’s internal panel, with all the members close allies of Brennan or CIA insiders, released its report that concluded its own innocence and accused the Senate staffers of stealing the documents. From Tim Cushing at Techdirt

Now that the long-delayed CIA Torture Report has been released, it’s time to find someone to blame. Not for the torture, of course. There will apparently be no punishments handed down for the abuse uncovered by the Senate Intelligence Committee. (Also, apparently, there will be no huge international fallout. Remember just a few short weeks ago when we were promised increased terrorist activity if the report was released? Still waiting…) But there will be some noise made about the Senate’s alleged impropriety.

One-man transparency army Jason Leopold reports at Vice that the Senate allegedly stole documents from the CIA — documents they weren’t supposed to have access to. But the credulity of this assertion really depends on how much you trust the source. [..]

So, the CIA took it upon itself to perform an investigation no one asked for in order to clear itself of allegations that it had spied on Senate staffers. Chalk that one up to active disinterest by the administration in pursuing any allegations of wrongdoing associated with the Torture Report. Several months ago, the Senate claimed the CIA had hacked its computers and accessed Torture Report work-in-progress but the DOJ declined the invitation to investigate further.

Now, the CIA is claiming it was blameless (you know, other than the torture), based on its own internal investigation. The OIG report alleging CIA abuse of Senate computers was reviewed by the CIA’s in-house Accountability Board and determined to be “riddled with errors.”

The CIA’s accusations against the Senate boil down to a bundle of classified internal CIA documents known as the “Panetta Review.” [..]

Now, let’s suppose that all of the CIA’s allegations are true. If so, should the Senate be held accountable for actions it took that resulted in the exposure of CIA wrongdoing? Obviously, the CIA feels it should. But the documents “improperly accessed” were internal CIA documents that showed the agency was lying to its overseers about its interrogation techniques. Without this “improper” access, it’s likely the Torture Report wouldn’t have been as devastating. Large amounts of CIA wrongdoing would have remained undisclosed.

What’s included in the Panetta Review is information the Senate Intelligence Committee should have had access to in the first place. But the CIA deliberately and wrongfully withheld information that contradicted the narrative it was feeding to its overseers. If the Senate is to be punished for its wrongful access, then it follows that the CIA should be held accountable for its deliberate misrepresentation of its torture programs. Instead, there’s now a chance the investigators will pay for their (mild in comparison) misconduct while the agency walks away clean.

That’s not all, it seems Brennan was in cahoots with the White House, specifically, his good buddy, McDonough.

White House Knew CIA Snooped On Senate, Report Says

By Ali Watkins, The Huffington Post

Central Intelligence Agency Director John Brennan consulted the White House before directing agency personnel to sift through a walled-off computer drive being used by the Senate Intelligence Committee to construct its investigation of the agency’s torture program, according to a recently released report (pdf) by the CIA’s Office of the Inspector General.

The Inspector General’s report, which was completed in July but only released by the agency on Wednesday, reveals that Brennan spoke with White House chief of staff Denis McDonough before ordering CIA employees to “use whatever means necessary” to determine how certain sensitive internal documents had wound up in Senate investigators’ hands.

Brennan’s consultation with McDonough also came before the CIA revealed the search to then-Senate Intelligence Committee chair Dianne Feinstein (D-Calif.), whose staff was the target of the snooping.

The new information suggesting the White House was aware of — and did not stop — the CIA’s computer snooping is unlikely to improve the existing distrust between Senate committee members and the executive branch. Feinstein has said that the CIA’s computer search likely violated the constitutional separation of powers, an allegation the White House has declined to directly address.

John Brennan Exonerates Himself with Sham Investigation

By Dan Froomkin, The Intercept

The outrageous whitewash (pdf) issued yesterday by the CIA panel John Brennan hand-picked to lead the investigation into his agency’s spying on Senate staffers is being taken seriously by the elite Washington media, which is solemnly reporting that officials have been “cleared” of any “wrongdoing“.

But what the report really does is provide yet more evidence of Brennan’s extraordinary impunity.

The panel concluded that CIA officials acted reasonably by scouring Senate computer drives in early 2014 when faced with a “potential security breach”. (That “breach” had allowed Senate staffers investigating CIA torture to access, more than three years earlier, a handful of documents Brennan didn’t want them to see.) [..]

But the CIA yesterday also released a redacted version of the full report of an earlier investigation by the CIA’s somewhat more independent inspector general’s office (pdf). And between the two reports, it is now more clear than ever that Brennan was the prime mover behind a hugely inappropriate assault on the constitutional separation of powers, and continues to get away with it.

Most notably, the official who ran the CIA facility where the Senate staffers had been allowed to set up shop wrote in a memo to the inspector general that Brennan, after speaking with White House Chief of Staff Denis McDonough about the errant documents, called him and “emphasized that I was to use whatever means necessary to answer the question of how the documents arrived on the SSCI side of the system.” [..]

And it was Brennan who made the paramount error in judgement here, when he decided that finding out how a series of embarrassing, revelatory CIA documents found their way into the hands of congressional overseers – really not such a bad thing – was somehow more of a threat to national security than respecting the independence of a separate branch of government, recognizing whose job it is to provide oversight over who, or honoring the spirit of an agreement between the agency and the Senate.

The whitewash was very much by design. Brennan stocked the panel with three CIA staffers and two of the most easily manipulated, consummate Washington insiders you could possibly imagine: former senator Evan Bayh, whose reputation as an unprincipled opportunist is legend; and Bob Bauer, whose lifelong mission has been to raise money for Democrats, not take stands. Then, with in-your-face chutzpah, Brennan called it an “accountability board”.

Far from “clearing” anyone of anything, the panel’s report is just the latest element in a long string of cover-ups and deceptions orchestrated by Brennan.  [..]

The panel’s report can also be seen as Brennan’s total assault on David B. Buckley, the CIA inspector general who wrote the first, highly critical report on the incident – and who suddenly resigned a few days ago and is “out this week” according to his office. The report didn’t just bat down the inspector general’s conclusions as “unsupported”; it belittled them. In a recommendation that simply dripped with contempt, the panel concluded that “it would be better” if the inspector general’s office “kept more complete records of interviews.”

Meanwhile, the full (though redacted) inspector general’s report fleshes out a lot of the details of the previously-released executive summary, which generally concluded that the CIA had improperly accessed the Senate computers.

The CIA and NSA have become rogue agencies that need to be reigned in not just by congress but ny the executive branch, as well

Is anyone surprised that the Obama administration is trying as hard as it can to stop the Senate CIA torture report from being released? It blatantly obvious that they do not want this report made public and are hoping that the incoming chair of the Senate Intelligence Committee, Sen. Richard Burr (R-SC), who is best buds with the intelligence community, will bury the report. The current stall is over the redaction of pseudonyms. The White House wants the aliases redacted arguing that it would expose the people they wish to protect. It is quite possible that if known, there people would face arrest and prosecution.

The fight between the White House and the Committee came to a head on Tuesday during the weekly briefing with the Senate Democrats and White House Chief of Staff and CIA Director John Brennan’s best bud, Denis McDonough:

“It was a vigorous, vigorous and open debate — one of the best and most thorough discussions I’ve been a part of while here,” said Sen. Chris Coons (D-Del.).

Sen. Jay Rockefeller (D-W.Va.), who served as intelligence committee chair before Feinstein, was furious after the meeting, and accused the administration of deliberately stalling the report.

“It’s being slow-walked to death. They’re doing everything they can not to release it,” Rockefeller told HuffPost.

“It makes a lot of people who did really bad things look really bad, which is the only way not to repeat those mistakes in the future,” he continued. “The public has to know about it. They don’t want the public to know about it.”

As negotiations continue, Rockefeller said Democrats were thinking creatively about how to resolve the dispute. “We have ideas,” he said, adding that reading the report’s executive summary into the record on the Senate floor would probably meet with only limited success. “The question would be how much you could read before they grabbed you and hauled you off.” [..]

Rockefeller said the administration’s unwillingness to use aliases reflects a broader contempt for congressional oversight.

“The White House doesn’t want to release this. They don’t have to. And all we do is oversight, and they’ve never taken our oversight seriously,” he said. (He then added that he did allow for one exception, the Church Committee.) “Under Bush there was no oversight at all. Remember the phrase, ‘Congress has been briefed’? What that meant was that I and our chairman […] and two comparable people in the House had met with [former Vice President Dick] Cheney in his office for 45 minutes and given a little whirley birdie and a couple charts.”

“They had a specialty for being unforthcoming in our efforts at oversight,” he added, “and therefore there is no incentive for them to change their behavior.”

Time is running out. It’s clear that one or more of the senators will need to take some drastic action. Sen. Mark Udall (D-CO), who was defeated in the midterm elections, has said that he is considering reading the unredacted report into the Congressional Record on the Senate floor, a move that is protected by the Constitution’s “speech or debate” clause.

It is time to release the torture report. Please sign the Act Blue petition to urge Sen. Udall to read the report into the congressional record.

Sign the petition: Enter the CIA torture report into the Congressional Record

The Senate Intelligence Committee’s “torture report” is expected to detail shocking abuse of prisoners at the hands of the CIA during the Bush administration, and even possible CIA lying to Congress.

But seven months after the Senate Intelligence Committee voted overwhelmingly to release the report to the American people, the White House is stonewalling Congress and demanding “redactions”-blacked-out sections and information-before making its contents public.

But there’s a way around that-and before the end of the year, we have a rare chance to make it happen.

Members of Congress have an absolute right to free speech, and a member could enter the report into the Congressional Record in its entirety-just as the Pentagon Papers were in 1971-without fear of prosecution.

That’s exactly what transparency advocates are calling on outgoing, staunchly anti-torture and pro-transparency Sen. Mark Udall to do.

Sign the petition to Sen. Mark Udall: If you enter the torture report into the Congressional Record, we’ll have your back.

Our Message to Sen. Mark Udall:

Before leaving office, please submit the Senate Intelligence Committee’s torture report to the Congressional Record. We know that you are considering undertaking this heroic and courageous act, and we and countless others will support you if you choose to do so.

We will deliver a copy of this petition and a list of signers to Sen. Mark Udall, Senate Intelligence Committee Chair Dianne Feinstein and President Obama to make sure our message is heard.

Bill of Rights Defense Committee

Blue America

Code Pink

CREDO

Daily Kos

Demand Progress

Digby’s Hullabaloo

Fight for the Future

Just Foreign Policy

The Nation

RH Reality Check

RootsAction.org

USaction

Win Without War

Note: When you sign our petition, your name and email address may be provided to one or more of the sponsoring organizations. You may opt out at any time.

When the Senate Select Committee on Intelligence (SSCI) agreed to declassify and release the executive summary of the 6,000 page investigation into the CIA’s use of torture last April, it also agreed to allow the White House to review the 480 page document for review. The White House announced that the CIA would take the lead in that review, virtually leaving the decision on what if any incriminating evidence that they tortured in the hands of the accused.

The writers at Techdirt have been joking about the “buckets of black ink” that would be “dumped” on the report. After weeks of waiting, no one should be surprised that the heavily redacted document that was returned to the SSCI on August 1 was barely coherent.

Late Friday, Senator Dianne Feinstein announced that the White House had returned the executive summary, but she’s a bit overwhelmed by all the black ink and is holding off releasing the document until her staff can look into why there were so many redactions:

   “The committee this afternoon received the redacted executive summary of our study on the CIA detention and interrogation program.

   A preliminary review of the report indicates there have been significant redactions. We need additional time to understand the basis for these redactions and determine their justification.

   Therefore the report will be held until further notice and released when that process is completed.”

Director of National Intelligence James Clapper responded that Sen. Feinstein’s complaint was unfounded stating that there were “minimal redactions,”  claiming that 85% of the document was not blacked out. Techdirt‘s Mike Masnick thinks Clapper may have been counting the margins

Of course, as Marcy Wheeler has pointed out, this is just about the executive summary of the report — which was specifically written to be published. In other words, the really “secret” stuff is in the rest of the report, but the 408 page exec summary was written with public disclosure in mind — meaning that the Senate Intelligence Committee staffers certainly wrote it with the expectation that it would need few, if any, redactions. So the fact that large chunks of it were redacted immediately set off some alarms.

SSCI Chairperson Sen. Feinstein (D-CA) released this statement:

After further review of the redacted version of the executive summary, I have concluded that certain redactions eliminate or obscure key facts that support the report’s findings and conclusions. Until these redactions are addressed to the committee’s satisfaction, the report will not be made public.

I am sending a letter today to the president laying out a series of changes to the redactions that we believe are necessary prior to public release. The White House and the intelligence community have committed to working through these changes in good faith. This process will take some time, and the report will not be released until I am satisfied that all redactions are appropriate.

The bottom line is that the United States must never again make the mistakes documented in this report. I believe the best way to accomplish that is to make public our thorough documentary history of the CIA’s program. That is why I believe taking our time and getting it right is so important, and I will not rush this process.

Sen. Carl Levin (D-MI), a member of the SSCI, also released a statement condemning the redactions as nothing more that a cover up of “embarrassing information:”

The redactions that CIA has proposed to the Intelligence Committee’s report on CIA interrogations are totally unacceptable. Classification should be used to protect sources and methods or the disclosure of information which could compromise national security, not to avoid disclosure of improper acts or embarrassing information. But in reviewing the CIA-proposed redactions, I saw multiple instances where CIA proposes to redact information that has already been publicly disclosed in the Senate Armed Services Committee report on detainee abuse that was reviewed by the administration and authorized for release in 2009. The White House needs to take hold of this process and ensure that all information that should be declassified is declassified.

Another committee member, Sen Mark Udall (D-C)) thought it was very clear that Director Clapper’s intentions were to distort the record

While Director Clapper may be technically correct that the document has been 85 percent declassified, it is also true that strategically placed redactions can make a narrative incomprehensible and can certainly make it more difficult to understand the basis for the findings and conclusions reached in the report. I agree wholeheartedly that redactions are necessary to protect intelligence sources and methods, but the White House must work closely with this committee to reach this goal in a way that makes it possible for the public to understand what happened.

According to a report in McClatchy, the summary carefully used pseudonyms of covert CIA agents and foreign countries that was much of what was blacked out:

Tom Mentzer, a spokesman for the committee’s chairwoman, Sen. Dianne Feinstein, D-Calif., told McClatchy on Monday that the blackouts _ officially known as redactions _ were made to pseudonyms used for both covert CIA officers and foreign countries.

“No covert CIA personnel or foreign countries are named in the report,” he said. “Only pseudonyms were used, precisely to protect this kind of information. Those pseudonyms were redacted (by the administration).”

All of the pseudonyms were excised from the version of the executive summary that the White House returned to the committee on Friday, a person familiar with the issue said.

Lawmakers seem willing to accept some redactions, but others made by the CIA and the White House would make it difficult or impossible to understand the subject being discussed, especially when a pseudonym appears in multiple references, said the knowledgeable person, who requested anonymity because of the matter’s sensitivity.

The Intercept‘s Jeremy Scahill joined MSNBC’s Alex Wagner on “NOW” to discuss the dispute over the redacted report

The CIA tortured and the US government approved it and still continues some forms of torture It is now actively engaged in the continued refusal to prosecute the crimes and still trying to make it sound like it was just a “mistake.” Waterboarding someone 183 times is not a mistake, it is a crime, a war crime. No amount of “awe shucks” statements by President Barack Obama that “we tortured some folks” or calling the perpetrators “patriots” will excuse the fact that they broke the law.

The Senate Select Committee on Intelligence should just release the executive report. The Justice Department should do its due diligence and prosecute the tortures and those who authorized it. Director Clapper and CIA Director John Brennan should be fired and prosecuted for lying to the Senate and their roles in the torture program. Pres. Obama should uphold his oath of office or be impeached.

Here is message to the Obama administration, as well as, past and present high ranking members of the CIA from David Cole, constitutional law, national security, and criminal justice professor at George Washington University, in his op-ed at the Washington Post:

Torture us not a public relations problem. It is a grave human rights abuse and a war crime.

Yet, once again the Obama administration has enable the torturers to manipulate the narrative to cover up their crimes.

Back in April, the Senate Select Committee on Intelligence voted to declassify part of its 6300 page report that concluded torture to be an ineffective intelligence-gathering technique and the CIA lied about its value. The committee also agreed to allow the White House to review the document with the CIA’s participating in approving what would be released to the public. Talk about a serious conflict of interest. This is tantamount to allowing an accused murderer to decide what evidence will be presented to the jury at his trial.

Up until Friday, a dozen ex-CIA officials were going to be allowed to review the report in a secure room at an undisclosed Washington suburb after signing a secrecy agreement. That now will not happened.

Then, on Friday, CIA officials called them and told them that due to a miscommunication, only former CIA directors and deputy directors would be given that privilege. Former directors Michael Hayden, Porter Goss and George Tenet have been invited to read it, as have former acting directors John McLaughlin and Michael Morell.

Senate aides familiar with the matter say Democratic Senator Dianne Feinstein, chair of the Senate intelligence committee, protested to the White House that it had no business allowing retired officials to read a Senate oversight report.

Apparently, the report is quite damning:

Several people who have read the full report, and who spoke on condition of anonymity because they were not authorised to discuss still-classified material, say it shows that the CIA interrogation programme was far more brutal than previously understood, and that CIA officials repeatedly misled Congress and the Justice Department about what was being done to al-Qaida detainees. The report asserts that no unique, life-saving intelligence was gleaned from the harsh techniques.

It’s long been known that the CIA used slapping, stress positions, sleep deprivation and other harsh tactics on several detainees and a near-drowning technique known as waterboarding on three of them. The CIA’s use of waterboarding has drawn particular scrutiny since it is considered the harshest technique on the list of those used, but the report asserts that the other tactics, as applied, were extremely harsh and brutal.

Torture is illegal under US law. CIA officials dispute that waterboarding amounted to torture.

To counter the negative press this report is bound to receive, former CIA Director George J. Tenet has quietly been working on a public relations response:

Over the past several months, Mr. Tenet has quietly engineered a counterattack against the Senate committee’s voluminous report, which could become public next month. The effort to discredit the report has set up a three-way showdown among former C.I.A. officials who believe history has been distorted, a White House carefully managing the process and politics of declassifying the document, and Senate Democrats convinced that the Obama administration is trying to protect the C.I.A. at all costs.

The report is expected to accuse a number of former C.I.A. officials of misleading Congress and the White House about the program and its effectiveness, but it is Mr. Tenet who might have the most at stake.

The detention and interrogation program was conceived on his watch and run by men and women he had put in senior positions.

It was Mr. Tenet who requested the former CIA Directors and officials be allowed to review the report.

There is also some frustration coming from Democratic committee members:

“If the redacted version of the Senate Intelligence Committee’s study that we receive appears to be an effort to obscure its narrative and findings – and if the White House is not amenable to working toward a set of mutually agreed-upon redactions – I believe the committee must seriously consider its other option,” Senator Mark Udall, a Colorado Democrat on the intelligence committee, told the Guardian on Monday.

It is believed that the White House will provide its completed redactions to sections of the Senate intelligence committee’s landmark torture report in the coming days. The committee will subsequently review the redactions as preparation for the report’s public release, something chairwoman Dianne Feinstein of California, a Democrat, had wanted to happen in early May. [..]

Fuelling congressional suspicions, the White House placed lead authority for reviewing the declassification in the hands of the CIA, which struck critics as a conflict of interest.

Udall joins Ron Wyden, the Oregon Democrat and civil libertarian on the committee with whom Udall often votes, in pointing to the parliamentary rule, Senate Resolution 400, as an additional tactic to force disclosure. Yet the never-before-used rule portends an uphill struggle: a majority of senators would need to vote for additional disclosure.

Author and investigative reporter for The Intercept, Jeremy Scahill and New York Times reporter, Mike Marzetti, joined MSNBC’s “NOW” host, Alex Wagner to discuss the release of the report and recent events,

One more word from Prof. Cole:

The CIA’s response is about 10 years too late. The time to respond to allegations of torture, cruelty and disappearances is when they occur, not a decade later, when an official report finds fault. And when you learn such conduct is occurring, there is only one proper response – order it to stop and hold the perpetrators accountable. Both the Geneva and the torture conventions absolutely prohibit torture and cruel treatment of wartime detainees; the world has proclaimed through these laws that there are no circumstances that justify such acts. [..]

So what will the public relations strategy look like now? We can probably make some educated guesses, based on past assertions by Bush administration officials. “We didn’t think it was torture because the lawyers told us it wasn’t.” That defense doesn’t work for Mafia dons and ought not to work for the CIA. The practices involved – waterboarding, excruciating stress positions, slamming suspects into walls and prolonged sleep deprivation – plainly qualify as torture and have long been treated as such by the United States when other nations employ them. Just last week, the European Court of Human Rights held Poland responsible for complicity in the CIA’s crimes, finding that the conduct was so clearly illegal that Poland had an obligation to stop permitting it on its territory.

Poland, in other words, was an accessory to the crime. But the United States was the ringleader.

Let’s be clear here, the Obama administration, while it may have stopped torture, is now complicit in covering up the Bush administrations war crimes and allowing the criminals, who should be sitting in prison cells, to continue the cover-up in the hopes that someday it will all go away. No amount of spin will negate these facts.

Three years ago the Unites States on the orders of President Barack Obama assassinated a native born American citizen, Anwar al Awlaki, in Yemen, using the rational that he was an “immanent threat” and, well, because they could. To this day, other than al-Awlaki’s videos and writing, that are covered under the First Amendment, there has been no evidence that this man was an immanent threat to the security of United States. No evidence, no indictment, no trial. Just a clear violation of al-Awlaki’s rights as an American.

One of the memos that was used to justify this murder was released this week after the Obama administration’s loss of a FOIA request by the ACLU and the New York Times. Needless to say, the memo written by Acting Assistant Attorney General of the Office of Legal Counsel, and now United States Circuit Judge, David Barron, is heavily redacted. The memo is, as the New York Times Editorial Board so blithely put it, “a slapdash pastiche of legal theories – some based on obscure interpretations of British and Israeli law – that was clearly tailored to the desired result”.

Citing the Authorization to Use Military Force (AUMF), that started the nebulous “global war on terror,” is hardly a defense for taking a man’s life without due process under our laws and wouldn’t hold water in any legitimate court like the Hague.

From Spencer Ackerman at The Guardian

The redacted version of the memo released Monday does not reveal much of the factual basis for the government’s claims that Awlaki represented an imminent threat to the United States.

In the disclosed portions, Barron’s memo does not explicitly vouch for the government’s case against Awlaki, referring instead to “the facts represented to us”. It refers instead to Awlaki as a “leader” who was “continuously planning attacks” against the US, without providing an evidentiary basis for claims central to the extraordinary circumvention of normal due process procedures. Nor do the public sections explain why capturing Awlaki was not feasible, nor why the Justice Department believes it need not have provided Awlaki with judicial process. [..]

The Justice Department memo “confirms that the government’s drone killing program is built on gross distortions of law”, said Pardiss Kebriaei, a lawyer with the Center for Constitutional Rights who challenged the Awlaki killing, who added that the “forced transparency comes years late”.

Rejecting a government argument that the release of the memorandum would chill attorney-client communications, the court wrote on Monday: “If this contention were upheld, waiver of privileges protecting legal advice would never occur. … We need not fear that OLC will lack for clients.”

The real in depth analysis of the memo comes from Marcy Wheeler, who dissects the memo paragraph by paragraph, here and here.

As Tim cushing at Techdirt writes, the “AUMF trumps all and rights are subject to revocation in times of war.”

The justifications listed below constantly cite 18 USC 1119(b), a law that simply states that it’s illegal for a US citizen to kill another US citizen residing outside US borders, making them subject to the United States’ laws on murder and manslaughter. But what looks simple and solid on the law books is apparently filled with loopholes and things Congress meant to make clear but apparently didn’t. [..]

On page 73, the DOJ notes that there’s actually no federal statute that grants the government the same “rights” (in terms of justified use of deadly force) local law enforcement agencies enjoy, but that doesn’t slow down the rationalizing. The DOJ looks back through legislative to find something that might apply to its drone attacks. But what it quotes here has nothing to do with executions. [..]

Technically, we’re not “at war” anywhere in the world. There’s no declared war, other than the one on terrorism, which the DOJ terms (using the AUMF wording) a “non-international armed conflict.” If this is the justification, terming anything a “war on…” would justify extrajudicial killing, because no one expects murder charges to be brought against them during normal acts of war (i.e., combatants killing other combatants).

Because the AUMF says we can detain a US citizen who is assisting our enemies, it also means we can kill a US citizen who does the same.

The question of what makes it legal to kill an American overseas is still unanswered.  

In the recent embarrassing uproar over Attorney General Eric Holder’s labeling a James Rosen, reporter for Fox News, a co-conspirator in a federal leak probe and issued a secret search warrant for his e-mails, Holder said that Department of Justice rules would be reviewed and revised as needed. The “New Rules” on media policy (pdf) were issued last week. The rules, as Marcy Wheeler at empty wheel points out, will only apply to explicitly to “members of the news media,” not journalists per se.

The definition might permit the exclusion of bloggers and book writers, not to mention publishers like WikiLeaks. [..]

That approach would have several advantages over protecting “the news media.” First, by protecting the act of journalism, you include those independent reporters who are unquestioningly engaging in journalism (overcoming the blogger question I laid out, but also those working independently on book projects, and potentially – though this would be a contentious though much needed debate – publishers like WikiLeaks), but also exclude those news personalities who are engaging in entertainment, corporate propaganda, or government disinformation.

The rules also are a move to set up an “official press.” More from Marcy who goes into detail:

The First Amendment was written, in part, to eliminate the kind of official press that parrots only the King’s sanctioned views. But with its revised “News Media Policies,” DOJ gets us closer to having just that, an official press.

That’s because all the changes laid out in the new policy (some of which are good, some of which are obviously flawed) apply only to “members of the news media.” They repeat over and over and over and over, “news media.” I’m not sure they once utter the word “journalist” or “reporter.” And according to DOJ’s Domestic Investigation and Operations Guide, a whole slew of journalists are not included in their definition of “news media.” [..]

The limitation of all these changes to the “news media” is most obvious when it treats the Privacy Protection Act – which should have prevented DOJ from treating James Rosen as a  suspect. [..]

The PPA, however, applies to all persons “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.” [..]

I’m clearly covered by the PPA. But the FBI could easily decide to exclude me from this “news media” protection so as to be able to snoop into my work product.

Congratulations to the “members of the news media” who have been deemed the President’s official press. I hope you use your privileges wisely.

Update: I’ve learned that the issue of whom this applied to did come up in background meetings at DOJ; in fact, DOJ raised the issue. The problem is, there is no credentialing system that could define who gets this protection and DOJ didn’t want to lay it out (and most of the people invited have never been anything but a member of the news media, making it hard for them to understand how to differentiate a journalist).

Ultimately, I think DOJ is so anxious for Congress to pass a shield law (which they say elsewhere in their report) because it’ll mean Congress will do the dirty work of defining who is and who is not a journalist.

The full article is a wealth of information and worth the time to read it, along with all the links.

The Obama administration and Congress are coming very close to creating a state sanctioned press, a true “Pravda on the Potomac,” as The Washington Post is unofficially called. This is Cass Sunstein’s dream come true.

No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions.

  ~Thomas Jefferson, Letter to Judge John Tyler (June 28, 1804)~

The perpetrator of a crime cannot investigate himself. Yet that is what Pres. Barack Obama has proposed over  growing concerns about press freedom following the Justice Department’s secret seizure of AP records and its accusation that Fox News reporter James Rosen could be part of a criminal conspiracy for soliciting information from a source. The president said that he would have Attorney General Eric Holder review the Justice Department guidelines for investigations that involve journalists. Although Holder did not sign the subpoena for the phone records of the Associated Press, Holder had to recuse himself from the investigation because he was in possession of the leaked information. Now, it has been revealed that Holder, himself, who signed the off on the warrant that allowed the Justice Department to search Fox News reporter James Rosen’s personal email.

The report places Holder at the center of one of the most controversial clashes between the press and the government in recent memory. The warrant he approved named Rosen as a “co-conspirator” in a leak investigation, causing many to warn that the Justice Department was potentially criminalizing journalism. The warrant also approved the tracking of Rosen’s movements in and out of the State Department, as well as his communications with his source, Stephen Kim. [..]

The Attorney General is usually required to approve requests to search journalists’ materials, but that rule does not extend to email records.

Now Pres. Obama says that it will be Holder who reviews the guidelines. This is the man who also said he doesn’t know how many times he had authorized the search of journalists’ records.

In an interview with Amy Goodman at Democracy Now, Matthew Rothschild, editor and publisher of The Progressive magazine, has called for Eric Holder’s resignation over spying on journalists and Occupy Wall Street protestors.

As much as many criticize Fox News and the Associated Press for their penchant for a right wing biased reporting, they are the press. The First Amendment applies to them, as well as, to the other news organizations and their reporters. In this we stand together.

Regardless of the left’s opinion of Fox News, the Obama administration has gone way over the constitutional line and this is adds to the serious threat to freedom of the press. The idea that the government. on its unconstrained wild hunt for whistle blowers, can issue secret subpoenas for telephone records just got worse this morning. The case is being made against Fox News reporter James Rosen for his reporting on the possibility that North Korea would respond to additional UN sanctions with more nuclear tests back in 2009. The Department of Justice is prosecuting State Department adviser and arms expert Stephen Jin-Woo Kim for “leaking” the information to James Rosen of Fox News. To makes the case against Rosen this is what the DOJ did:

They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails. [..]

Court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist – and raise the question of how often journalists have been investigated as closely as Rosen was in 2010. The case also raises new concerns among critics of government secrecy about the possible stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.

First, Kim did not obtain these documents illegally, he had access to them, He did not steal or sell the documents, or pass them to an enemy agent of the US. He gave, what is for all intents and purposes, innocuous information to a news reporter. For that Kim is being prosecuted under the Espionage Act. Now the DOJ is seeking to prosecute Rosen for revealing the information.

Glenn Greenwald reiterated that it is not against US law to to publish classified information and is far worse than the secret subpoena of the phone records of the Associated Press:

The focus of the Post’s report yesterday is that the DOJ’s surveillance of Rosen, the reporter, extended far beyond even what they did to AP reporters. The FBI tracked Rosen’s movements in and out of the State Department, traced the timing of his calls, and – most amazingly – obtained a search warrant to read two days worth of his emails, as well as all of his emails with Kim. In this case, said the Post, “investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.” It added that “court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist”.

But what makes this revelation particularly disturbing is that the DOJ, in order to get this search warrant, insisted that not only Kim, but also Rosen – the journalist – committed serious crimes. The DOJ specifically argued that by encouraging his source to disclose classified information – something investigative journalists do every day – Rosen himself broke the law.

In an affidavit (pdf) from the FBI by Agent Reginald B. Reyes in the application for the search warrant, Reyes alleged that because Rosen and Kim used aliases to protect their communications and sought ways to maintain confidentiality, all completely legal for journalists to do, Rosen was acting “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.”

In her comparison of this case with the Associated Press, and cases against James Risen of The New York Times and Bradley Manning, Marcy Wheeler notes that Agent Reyes used the strategy of painting Rosen as criminal to circumvent the “Privacy Protection Act protections for media work product” in order to obtain the warrant for Rosen’s e-mails and other records:

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.

It is very clear that this is an unprecedented threat to freedom of the press and the Obama administration has escalated this war since Obama took office in 2009.

In an interview last week with Amy Goodman and Nermeen Shaikh, senior fellow at The Nation Institute Chis Hedges, called the monitoring of the AP phone records “one more assault in a long series of assault against freedom of information and freedom of the press.”

“Talk to any investigative journalist who must investigate the government, and they will tell you that there is a deep freeze. People are terrified of speaking, because they’re terrified of going to jail.”

~Chris Hedges~

Here is Mr. Hedges piece from Truthdig documenting The Death of Truth

Other related articles from Glenn Greenwald at The Guardian:

Justice Department’s pursuit of AP’s phone records is both extreme and dangerous

The major sea change in media discussions of Obama and civil liberties

Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates.

~Benjamin Franklin~

   “On Freedom of Speech and the Press”, Pennsylvania Gazette, 17 November 1737

The latest Obama administration headache, “AP-Gate,” that it essentially created on its own, goes the core of the principles on which this country was founded. There is a good reason that the very first amendment addresses freedom of speech and a free press. Yes, at times they have appeared to be just another arm of the government, especially when they spewed the propaganda about 9/11 and Iraq. But every once in awhile they get it right, like the New York Times did on June 13, 1971 when they exposed the dirty secrets of the Vietnam War and the Nixon administration by printing the first segment of the Pentagon Papers. Looking at what happened in the aftermath of those revelations and how it all worked out in the end, reminds us that sometimes government functions in spite of itself.

It’s fairly obvious that the Obama administration is trying to cover its own complicity in what Attorney General Eric Holder labeled among “the top two or three most serious leaks that I’ve ever seen” putting “the American people at risk.” Those proclamations about that leak are laughable since the reason Holder had recused himself from the investigation is that he, himself, is at the center of the storm, along with the new CIA Director John Brennan. All in the name of the continued cover up of the Bush and Obama war crimes.

In an editorial, the New York Times called out the Obama administration for its “chilling zeal for investigating leaks and prosecuting leakers” and its lack of a credible reason for it “for secretly combing through the phone records of reporters and editors at The Associated Press.”

Both Mr. Holder and Mr. Cole declared their commitment – and that of President Obama – to press freedoms. Mr. Cole said the administration does not “take lightly” such secretive trolling through media records.

We are not convinced. For more than 30 years, the news media and the government have used a well-honed system to balance the government’s need to pursue criminals or national security breaches with the media’s constitutional right to inform the public. This action against The A.P., as the Reporters Committee for Freedom of the Press outlined in a letter to Mr. Holder, “calls into question the very integrity” of the administration’s policy toward the press.

As matter of fact, in September 2009, President Obama did a complete reversal of his position on the reporter shield law that he supported in 2007. What he proposed and Democrats opposed, would have gutted judicial review. Rachel Maddow overlooked that point last night, as well, in an otherwise interesting segment that walks us through the importance of freedom of the press and the serious disregard of the Constitution and rules by the Obama Justice Department. Her guest was David Schulz, a media attorney for more than 30 years now representing the Associated Press.

Eric Holder, like Alberto Gonzalez and John Mitchell, lacks the integrity to hold the office of Attorney General. He should resign immediately.