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Why the U.S. Wanted to Investigate the AP Leak

The media uproar over the subpoena of AP telephone records continues. The reason for seizing the records that is being put forth is that it was part of an investigation into intelligence leaks about a new explosive device being made by AQAP in Yemen that would evade detection by U.S. airline security and allow an Undie Bomber II to succeed.

It seems to be a bit more than that. After reading close to 300 news articles on Lexis (and skimming another 600) from May, 2012, here is more of the story from multiple news sources, here and abroad. (This is a summary from various news sources, and I am not suggesting it is accurate, only that this is what was reported at the time. I’ve listed several of the news articles at the end)[More...]

First, the operation that led to the discovery of the Undie Bomber II threat was not initially a U.S. or CIA operation. It was a an operation by the Saudis, with assistance from Britain’s MI6. The operation involved a Yemeni native who had become radicalized in Great Britain and was then turned by the Saudis. He agreed to infiltrate AQAP in Yemen and allow himself to be recruited as a suicide bomber. He reported to the Saudis, and the Saudis shared his information with the CIA. It was his information that led to the U.S. drone strike in Yemen on Sunday May 6 that missed bombmaker al-Asiri but took out AQAP’s Fahd al-Quso, who was much wanted by the U.S. It was this informant who tricked AQAP into believing he was a willing suicide bomber, and who got AQAP to let him have the new device (which he was supposed to detonate on an airplane.) The informant did not give the bomb to the CIA or the U.S. He gave it to the Saudis who gave it to the U.S.

Almost all the articles report the same thing. To repeat: It was a Saudi undercover operation, in which they turned an operative with the assistance of MI6. The Saudis sent him to infiltrate al Qaeda in Yemen. He got AQAP to trust him and give him the device, which he in turn gave to the Saudis, who gave it to the CIA. The Saudis got him safely out of Yemen, but his cover was blown. The leak of the information about his role (even though his identity wasn’t disclosed) forced the shutdown of the operation and ended the usefulness of this informant. One British paper reported:

Without the excited U.S. news coverage, the agent, who reportedly did escape safely once word was flashed about the impending AP leak story, could have still been providing further intelligence on the location of al Qaeda leaders in Yemen, which resulted in only one successful drone strike before word got out, resulting in the explosive demise of senior leader Fahd al-Quso.

.... "Mike Scheur, the former head of the CIA's Bin Laden unit, said the leaking about the nuts and bolts of British involvement was despicable and would make a repeat of the operation difficult. 'MI6 should be as angry as hell. This is something that the prime minister should raise with the president.'"

Other papers, writing after the AP leak, described the informant’s history.

The agent, thought to be a jobless Arab in his 20s, was radicalised in Britain and at least one other European country. While visiting relatives in Saudi Arabia he was recruited by intelligence officers.

Although he has Saudi roots, the fact he had been given a British passport made him an attractive prospect for al-Qa'ida in the Arabian Peninsula as it planned its latest attack on the US. The agent convinced the group he was ready to die for the cause by carrying out a suicide bombing mission on a transatlantic passenger jet. His weapon was to be a sophisticated bomb, hidden in his underwear. It was designed by AQAP's master bomb-maker, Ibrahim Hassan al-Asiri, who sent his brother to his death with explosives hidden in his body. The undercover agent escaped Yemen with the bomb and a wealth of intelligence material.

Here’s more on the informant, from a news article quoting someone named Mustafa Alani, director of the Gulf Research Centre and an associate fellow at the Royal United Services Institute:

The new "recruit" was a double agent. He made a convincing would-be suicide bomber. Although born in the Middle East, he spent several years in London and was thought to have dropped out of a British university, Alani said. ``He was involved in (extremist) activities in the UK,'' said Alani, who says he has close security contacts in Saudi Arabia. "But he later changed his mind."

It was during his visits to Saudi Arabia that his potential as an intelligence asset was recognised. About a year ago he moved to Yemen and enrolled at an Islamic or Arabic language school in Sanaa, the capital, in the hope of being “talent-spotted” by AQAP. He was accompanied by a handler at the school, who briefed Saudi intelligence on a daily basis.

Within three months, Alani said, the organisation had taken the bait. “He received instruction on how to avoid detection at the airport, how to behave,” Alani said. “He was able to convince al-Qa'ida he was genuinely ready to carry out the mission.''

The agent was entrusted with the bomb and told by AQAP to reserve a seat on a transatlantic flight. The booking was never made. Instead, he and his handler were whisked out of Yemen and the device was handed over to the CIA about April 20.

The agent has been moved to a country outside the Middle East. He may be entitled to a massive payout for helping track down Quso, who bombed a US warship off the coast of Yemen in 2000. Quso had a $US 5 million ($4.9m) bounty on his head, and under the US's Rewards for Justice program an individual can receive up to $US25m for information preventing a terrorist attack such as the planned aircraft bombing.

The problem with the leak was multifold. In addition to compromising the Saudi investigation from which the U.S. had received valuable intelligence leading to its obtaining the device and carrying out a drone strike that killed a person on its most wanted list, the message the leak sent to the Saudis and UK was that the U.S. can’t keep a secret. From another news article:

The next time MI5 approaches an agent, how is he or she to be convinced that their actions will not wind up in the pages of The New York Times? How will a Saudi Arabian intelligence official persuade a young Arab recruit that their information isn't going straight to Langley, Virginia? These are not abstract hypotheticals, but urgent problems. Intelligence sharing is absolutely pivotal to modern counterterrorism.

On May 10, 2012, Leon Pannetta said at a DOD news briefing:

PANETTA: Our whole effort is to try to be able to get individuals that can provide intelligence and that can work with us. And to be able to do that and do that effectively, you have to protect these people and you have to protect the confidence that -- and the classification and the covert nature of this kind of work. And when these leaks take place, I can't tell you how much they damage our ability to be able to pursue our intelligence efforts. And so I am fully in favor of a full and thorough investigation of this matter. And I understand that the director, the DNI will do that.

In other words, it seems the details of the new explosive were intricately tied to the drone attack and both were made possible because of this informant who worked for the Saudis with the help of Britain’s MI6. The CIA was not running him. The AP disclosed the details about the explosive device on Monday, May 7, just hours after Sunday’s drone strike in Yemen that the U.S. hoped would take out bomb-maker al Asiri. While the strike missed al-Asiri, it got AQAP leader Fahd al-Quso. Once the drone strike was over, the AP decided to publish the report on the device.

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. The FBI and Department of Homeland Security acknowledged the existence of the bomb late Monday,

The Director of National Intelligence announced in May, 2012 that an investigation would be conducted across 16 intelligence agencies to find out who leaked details of the Saudi operation to the AP. At the time, both Democrats and Republicans praised the leak investigation:

"I don't think those leaks should have happened. There was an operation in progress and I think the leak is regarded as very serious," Dianne Feinstein, chair of the Senate Intelligence Committee, told reporters Tuesday. The Democrat promised a congressional investigation of the episode, a view shared by her Republican counterparts.

"If something bad happens because it was leaked too early, that's a catastrophe and it's also a crime," Republican Mike Rogers, chairman of the House Intelligence Committee, told CNN.

There is no legal requirement that DOJ tell the media in advance of its intent to subpoena telephone toll records. The regulations say it can delay notice for 45 days and then, with appropriate approval, extend the delayed notification for another 45 days. Here are DOJ's guidelines for obtaining records from reporters.

The policies, procedures and standards governing the issuance of subpoenas to members of the news media, subpoenas for the telephone toll records of members of the news media, and the interrogation, indictment, or arrest of members of the news media are set forth in 28 C.F.R. ß 50.10.
From 28 CFR 50.10(g):

(g) In requesting the Attorney Generalís authorization for a subpoena for the telephone toll records of members of the news media, the following principles will apply:

(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. In addition, prior to seeking the Attorney Generalís authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section.

(2) When there have been negotiations with a member of the news media whose telephone toll records are to be subpoenaed, the member shall be given reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it.

(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)

In May, 2012, FBI Chief Robert Mueller told the Senate Judiciary Committee the FBI was investigating the leaks about the Undie II plot to blow up a U.S. airliner because the leaks put the lives of sources at risk, which makes it much more difficult to recruit sources, and damages our relationships with our foreign partners. He said the FBI would be working with the U.S. Transportation Security Administration.

Discussions are going on with our partners overseas to make certain that whatever impact there is is minimized and precautions are put into place so that, in the future, it does not happen again.''

Sources for the above information (available on Lexis.com):

  • Bomb plot press leak halted terror probe by Reuters, Mark Hosenball, The Chronicle (Willimantic, Connecticut) May 19, 2012
  • FBI investigating leaks to media from plot in Yemen to blow up U.S. airliner Kuwait News Agency (KUNA) May 17, 2012
  • F.B.I. Confirms Inquiry Into Leak Of Details on Bomb Plot by Al Qaeda The New York Times May 17, 2012, Michael S. Schmidt; Scott Shane and Eric Schmitt
  • FBI Head Says Intel Leaks Like Al-Qaeda Plot Endanger Lives Radio Free Europe May 16, 2012,
  • Spy games fail to foil bomb master, Dipesh Gadher David Leppard, The Australian May 14, 2012
  • Dangerous new wrinkle in underwear bombs The Davis Enterprise (California) May 14, 2012 Monday
  • London tightlipped on claims bomb plot agent was British Agence France Presse -- English May 11, 2012
  • Officials: Britain's MI6 key to al-Qaida agent, Eileen Sullivan and Kimberly Dozier, The Associated Press, May 11, 2012
  • The Al-Qaeda underwear bomber and the CIA leaks: loose lips sink spies, Shashank Joshi, The Telegraph, May 11, 2012
  • US spy chief orders inquiry into leaks over Qaeda plot Agence France Presse, May 9, 2012
  • CIA launches inquiry into media leaks over 'underpants' double agent, Agence France Presse
  • AP source: Leaks probed in terrorism case, Pete Yost, AP, May 10, 2012;
  • Officials: Al-Qaida bomber was CIA informant, The Herald-Sun (Durham, N.C.) May 9, 2012 , AP, Adam Goldman, Eileen Sullivan and Matt Apuzzo (Associated Press writers Kimberly Dozier, Ted Bridis, Bob Burns, Bradley Klapper and Alan Fram in Washington, Ahmed Al-Haj in Sanaa, Yemen, Verena Dobnik in New York, Paisley Dodds in London, Matthew Lee in New Delhi and Slobodan Lekic in Brussels contributed to this report.)
  • Work with Yemen led to bomb discovery, says Obama adviser, AP, Adam Goldman, Matt Apuzzo
  • Would-be underwear bomber revealed to be CIA Informant who delivered device to U.S. officials and helped Yemen drone strike, Mail Online May 8, 2012
  • CIA thwarts 'undetectable' al-Qaida bomb plot, AP, Adam Goldman, Matt Apuzzo, Associated Press Online May 8, 2012

The Justice Department, in its letter this week to the AP, says the investigation is ongoing. It doesn't seem like they are after the reporters who published the information, but their sources -- the intelligence officials who leaked the details of the Saudi/UK/AQAP operation and disclosed that a Saudi informant from the UK had successfully infiltrated AQAP.

Reuters today has more on the continuing investigation into the leakers.

My thoughts: By now, the AP has to be aware that since the investigation is ongoing, toll records are just the tip of the iceberg. DOJ begins with subpoenas for toll records, which do not require judicial approval. But they don’t stop there. Once they get toll records, they move on to pen registers and trap and trace devices (which require court orders, but not probable cause, and which also allow delayed notification.) After reviewing the phone numbers on the pen registers and trap and trace devices, they move to wiretaps (which do require a probable cause showing but again, delayed notification is allowed.)

In addition to being outraged about the subpoena of toll records of the media, and the overbreadth of these particular requests, I think Americans should be outraged by how easy it is for law enforcement to obtain everyone’s toll records, without a court order and with delayed notice. And by how often they do it. It's not just done in terror investigations, but in every-day, run of the mill drug investigations.

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  • Display: Sort:
    Thanks for doing the legwork, Counselor. (5.00 / 1) (#1)
    by Mr Natural on Thu May 16, 2013 at 07:52:27 AM EST
    The damage to what remains of the CIA's credibility is real.  As for the 'usefulness of the informant,' that would have ended when he (presumably) declined his suicide mission, or even if he didn't.

    AP ran the story one day ahead of (5.00 / 1) (#6)
    by Militarytracy on Thu May 16, 2013 at 10:40:46 AM EST
    The Obama Administration's official announcement, and Richard Clarke figured out from how Brennan worded things that they had someone working on the inside, so I struggle to understand what the leak really was.

    Maybe I have an oversimplified view of things, but the fact that the "spy" disappeared with the bomb device basically outed him/her immediately.  I wouldn't have gone back in again with a story that my dog ate it after the bomb maker is droned, I don't think they're going to buy it.

    Was the White House only making an official announcement that Tuesday because AP had the story?  If so, so the White House was going to pass up that brag for how long?

    Yes, oversimplified (none / 0) (#12)
    by RonK Seattle on Thu May 16, 2013 at 12:18:08 PM EST
    What was announced and how it was announced could make a huge difference in countermeasures taken by the bombmakers.

    Could affect their internal fire drill to recognize and secure/burn compromised assets. Could leave the infiltration pathway(s) open. Could lead them to doubt their own designs. Etc.

    Parent

    Don't believe that for one single minute (none / 0) (#18)
    by Militarytracy on Thu May 16, 2013 at 12:51:36 PM EST
    AQAP made the person days prior to the extent they were probably taking measures the minute that person disappeared with the device.

    That's probably why we didn't get the bombmaker.  This is not the cold war, where we are attempting to keep the spy death toll down and flip everyone and wage a secret war the public is largely in the dark about.  Well, in the dark of drones, who, what, and where...but nobody is hiding the dead.

    All covert operations doubt their own design and they had better.  They had better wake up every morning doing it.  We have several CIA from the Bin Laden team in the ground because of the lack of that.  I understand that Hayden said that a CIA unwillingly to take those risks is a CIA that couldn't get Bin Laden but I'll never know if that suicide bombing had been thwarted at the gates if that's really true or not.

    Parent

    If I have to hear one more time... (5.00 / 1) (#7)
    by Dadler on Thu May 16, 2013 at 10:56:03 AM EST
    ...the term "puts American lives in danger," I am going to puke. This is a federal government corrupt to the core, that lies to every American every day about almost everything. It is a government that values fiat currency over its own human beings at every turn; that can't even make VA hospitals that aren't a disgrace; that can't even pay its neediest citizens a living wage; that is addicted to militarism and bombs like a heroin addict to junk -- but it's JOURNALISTS actually doing their jobs that are the danger.

    How about this? Leave that part of the world alone ENTIRELY. With the ugly history the West has in that region, I am sorry, this is the only real solution IMO.

    Thanks for the work, J, obviously. I don't know how you kept your eyes open.

    Legal or not... (5.00 / 1) (#17)
    by kdog on Thu May 16, 2013 at 12:48:55 PM EST
    and knowing this additional background info, I still think the DOJ was way outta line.

    The investigation into the leak(s) should be an internal investigation...it's not the AP's f*ckin' problem.  The AP was more than generous and cooperative with the government...they shoulda got a thank-you card, not spied upon.

    Really an excellent informative post, Jeralyn (5.00 / 3) (#19)
    by shoephone on Thu May 16, 2013 at 01:00:28 PM EST
    Thanks for this.

    What (5.00 / 1) (#40)
    by lentinel on Sun May 19, 2013 at 05:17:06 AM EST
    I sense is that when the smoke clears, we will be left with even fewer of our civil rights intact, and the government even more free to do whatever it wants and be accountable to no one.

    I just love to read all you folks (1.00 / 2) (#13)
    by jimakaPPJ on Thu May 16, 2013 at 12:19:30 PM EST
    making excuses for what Obama has done that you attacked when Bush did the same thing.

    Double standard??? You bet!

    So you're finally acknowledging (none / 0) (#22)
    by jondee on Thu May 16, 2013 at 01:51:26 PM EST
    that Bush may've actually done something wrong back then?

    Don't forget, he protected us from another 9/11..

    Parent

    Hypocrisy is a funny thing (5.00 / 1) (#23)
    by Slado on Thu May 16, 2013 at 02:00:26 PM EST
    To point out someone elses you have to essentially admit your own.

    Not many have been consistent on this subject.

    Republicans complaining about leaks then getting upset along with the press.  Our president (the constitutional law professor) campaigning on full disclosure turning into the greatest prosecutor of leaks the US has ever seen.

    One need not look far for Hypocrisy.

    Parent

    Too bad Obama didn't protect (1.00 / 2) (#29)
    by jimakaPPJ on Thu May 16, 2013 at 11:49:50 PM EST
    Benghazi on 9/1l/2012.

    Parent
    Get (5.00 / 2) (#30)
    by Ga6thDem on Fri May 17, 2013 at 07:03:34 AM EST
    back to us when you're offering up George W. Bush and Dead Eye Dick to be tried for war crimes at the Hague.

    Parent
    By your logic (5.00 / 3) (#32)
    by Yman on Fri May 17, 2013 at 08:02:11 AM EST
    Too bad Bush didn't protect the thousands of Americans who died in Washington, DC, Pennsylvania and New York on 9/11/01.

    Oh, wait ... that's right.  You don't blame Bush for that, but you do blame Obama for Benghazi.

    What were you saying about hypocrisy?

    Parent

    Why are the four who died in Benghazi (none / 0) (#31)
    by Militarytracy on Fri May 17, 2013 at 07:05:16 AM EST
    More precious to you than the six who died yesterday?

    Parent
    Just for the record (none / 0) (#35)
    by NYShooter on Fri May 17, 2013 at 07:25:22 PM EST
    15 died yesterday.......6 were American.

    But, you're probably right; to Jim, non-Americans don't count.

    Parent

    Just for the record (none / 0) (#36)
    by Militarytracy on Sat May 18, 2013 at 01:44:42 AM EST
    At least 10 Libyan security guards died fighting alongside the 4 in Benghazi.  

    Parent
    didn't know that, Tracy (none / 0) (#37)
    by NYShooter on Sat May 18, 2013 at 07:22:20 AM EST
    hey, did you think I was dumping on you?

    no way, my friend. Just saying the tragedy was even worse than four people. I was adding to your comment, not criticizing it. I hope you know that.

    Parent

    Sorry shooter (5.00 / 1) (#38)
    by Militarytracy on Sat May 18, 2013 at 01:19:51 PM EST
    The Benghazi thing is just difficult at times to take because so many people are out there with their lives on the line right now.  And it isn't that I think we should be lax in protecting people, but as an active duty family we accepted that some risk is involved.  We all have to weigh that all the time, and talk about it, and work it out emotionally.

    At the same time, we have many first responders within the confines of the United States who lose their lives every day.  Why isn't the House having hearings on the amount of fertilizer stored at the Texas plant and all those fire fighters who lost their lives?  What could have been done to prevent that?  Who dropped the ball?

    Everyone in Benghazi knew that the situation was dangerous, but they felt that the risk was a worthy one.  Mullen and Pickering were part of a commission that looked into Benghazi and Issa won't allow them to testify in public now.  They have revealed his manipulation now too.

    The people feeding the Benghazi circus do such an injustice to everyone who serves and everyone who supports and everyone who pays taxes and needs the daily focus to be on real issues.  It was their impeachment of Clinton that got us into this mess.  When Clinton had a shot at Bin Laden he didn't feel like he could afford the international incident it would create taking him out because they were trying to impeach him.  He was going to take political heat for taking out Bin Laden and he had none to spare.  It was a circus that prevented our President from doing his job in a timely fashion.  Republicans disrupt governance, put lives in danger constantly, stir chaos so that people can't even focus on current matters and concerns and take care of today.

    Parent

    Yes (none / 0) (#34)
    by jondee on Fri May 17, 2013 at 01:49:33 PM EST
    but as you were fond of saying about Bush, we haven't had another embassy attack since then..

    I think you started say that about Bush on 9/12..

    Parent

    With Bush (5.00 / 2) (#39)
    by CoralGables on Sat May 18, 2013 at 09:03:05 PM EST
    there were about ten embassy attacks. Common enough when he was president that they were mostly ignored.

    Parent
    The leak of classified information about ... (none / 0) (#2)
    by Donald from Hawaii on Thu May 16, 2013 at 09:22:27 AM EST
    ... an ongoing intelligence operation and its subsequent disclosure by the AP are unconscionable, and as Americans, we should want the person(s) with security clearance who leaked the story -- not the AP reporter(s) and editor(s)-- to be identified and held to official and legal account.

    That said, we should all also take a very jaundiced view of any law enforcement investigation which casts such wide nets as to effectively become a fishing expedition, and we should further be alarmed at how easy it is for the legal authorities to obtain what most of us would otherwise consider to be our own private records and confidential personal information, regardless of their reason or rationale.

    I'd be a little more comfortable were a federal judge providing court oversight over the DOJ activities -- not by much, but certainly more than I am at present.

    And to those Republicans who are almost giddily jumping down the Obama administration's throat over this subpoena of media toll records, I would simply remind them that this is the logical outcome of their partisan filibuster of the media shield law five years ago, which of course renders this most recent display of highly selective outrage on their part to be at once unseemly and hypocritical -- (sigh!) again.

    Thank you, Jeralyn, for this most informative post. Aloha.

    What about...? (5.00 / 2) (#3)
    by jbindc on Thu May 16, 2013 at 10:01:11 AM EST
    Obama's part?

    By CHARLIE SAVAGE
    Published: September 30, 2009

    The Obama administration has told lawmakers that it opposes legislation that could protect reporters from being imprisoned if they refuse to disclose confidential sources who leak material about national security, according to several people involved with the negotiations.

    The administration this week sent to Congress sweeping revisions to a "media shield" bill that would significantly weaken its protections against forcing reporters to testify.

    The bill includes safeguards that would require prosecutors to exhaust other methods for finding the source of the information before subpoenaing a reporter, and would balance investigators' interests with "the public interest in gathering news and maintaining the free flow of information."

    But under the administration's proposal, such procedures would not apply to leaks of a matter deemed to cause "significant" harm to national security. Moreover, judges would be instructed to be deferential to executive branch assertions about whether a leak caused or was likely to cause such harm, according to officials familiar with the proposal.

    Amazing how one can do a 360 degree turn when one is caught with their hand in the cookie jar...

    Parent

    360 ?? (none / 0) (#4)
    by ScottW714 on Thu May 16, 2013 at 10:24:38 AM EST
    If they view this leak as significant, there is no 360.  And putting someone's life endanger would seem to qualify.
    But under the administration's proposal, such procedures would not apply to leaks of a matter deemed to cause "significant" harm to national security.

    I'm not getting behind Obama on the issue.  I don't like the people investigating what is essentially leaks form their own, being the ones who determine if it's appropriate, aka significant.


    Parent

    Yeha - I meant 180 (none / 0) (#5)
    by jbindc on Thu May 16, 2013 at 10:33:24 AM EST
    The "War on Terror" by any other name (none / 0) (#11)
    by jondee on Thu May 16, 2013 at 11:59:40 AM EST
    is still the War on Terror..Emphasis on the word "war"..

    Name me a President in the last 150+ years who didn't curb some essential civil liberties during a time of intense miltarization. The only thing that's drastically changed is the technology.

    If people think "we need" 700 military bases and the kind of extensive-worldwide info/intelligence gathering networks we have now, they'd better be prepared for the trade off.  

    Parent

    The Obama administration has a history (5.00 / 4) (#8)
    by Anne on Thu May 16, 2013 at 10:59:03 AM EST
    of bypassing the courts for resolution of these issues.

    Here's part of what the New Yorker's counsel wrote:

    The cowardly move by the Justice Department to subpoena two months of the A.P.'s phone records, both of its office lines and of the home phones of individual reporters, is potentially a breach of the Justice Department's own guidelines. Even more important, it prevented the A.P. from seeking a judicial review of the action. Some months ago, apparently, the government sent a subpoena (or subpoenas) for the records to the phone companies that serve those offices and individuals, and the companies provided the records without any notice to the A.P. If subpoenas had been served directly on the A.P. or its individual reporters, they would have had an opportunity to go to court to file a motion to quash the subpoenas. What would have happened in court is anybody's guess--there is no federal shield law that would protect reporters from having to testify before a criminal grand jury--but the Justice Department avoided the issue altogether by not notifying the A.P. that it even wanted this information. Even beyond the outrageous and overreaching action against the journalists, this is a blatant attempt to avoid the oversight function of the courts.

    Marcy Wheeler:

    If the AP had been able to present proof, after all, that the White House (or even the CIA) had told them the story wouldn't damage national security, then it would have had a very compelling argument that the public interest in finding out their source is less urgent than the damage this subpoena would do to the free press.

    So I don't know what would have happened. But I do know it is a real dispute that may well have a significant impact on the subpoena.

    And that's why we have courts, after all, to review competing claims.

    Of course, the Obama Administration has an extensive history of choosing not to use the courts as an opportunity to present their case. Most importantly (and intimately connected to this story), the government has chosen not to present their case against Anwar al-Awlaki on four different occasions: the Nasser al-Awlaki suit, the Umar Farouk Abdulmutallab trial, the ACLU/NYT FOIAs, and now the wrongful death suit. This serial refusal to try to prove the claims they make about their counterterrorism efforts in Yemen doesn't suggest they're very confident that the facts are on their side.

    Which may well be why DOJ chose to just go seize the phone contacts rather than trusting their claims to a judge.

    This administration also has a history of leaking classified information - when it helps them - but to my recollection, there has been no equivalent effort to put an end to it by holding anyone accountable.  There is a distinct air of "rules for thee, but not for me" where this administration is concerned, a decidedly totalitarian approach to governing, I'd say.

    And please don't get me started on Obama's resurrected support for a federal shield law for which he used the same approach he did with FISA: give speeches supporting it, vote against it.

    I don't for one minute believe that Obama intends now or in the future to change his approach to these issues, not as long as he can get away with saying one thing and doing another.

    Parent

    Useful digest, Jeralyn (none / 0) (#9)
    by RonK Seattle on Thu May 16, 2013 at 11:42:03 AM EST
    In brief, we fumbled the crown jewels of counterterror intel ... and they weren't even OUR crown jewels.

    The Saudis are Pissed (none / 0) (#10)
    by squeaky on Thu May 16, 2013 at 11:51:48 AM EST
    ... so I struggle to understand what the leak really was...

    Leak is minor compared to pacifying the Saudis, imo.

    How will a Saudi Arabian intelligence official persuade a young Arab recruit that their information isn't going straight to Langley, Virginia?


    I understand that according to Mike Scheur (none / 0) (#16)
    by Militarytracy on Thu May 16, 2013 at 12:44:16 PM EST
    the Saudis should be pissed and MI6 and MI5 BUT....the administration was running with a foiled undie bomb attempt on Tuesday.  So that basically = Yemen, and then giving non-specifics yields an obvious someone on the inside.  That came about because everyone was freaking and Brennan had to reassure EVERYONE that the device was literally in our own hands the whole time it existed or sort of or mostly :)

    AQAP made the "agent" before anyone else did, and they would have never fallen for the same MO twice.  Well maybe they would have but I'm not betting my severed head on it.  I'm sorry the Saudis might be angry or ought to be angry or maybe they are just angry.  It is probably a good thing though for the next AQAP double agent to understand that they made the first agent after the fact and they are waiting patiently for the second one to show up one of these days. A good spy maker could use all that paranoia and preconception in their new spy's favor :)  A couple of bad wigs and we are off

    Parent

    Thanks for the addtl background info (none / 0) (#15)
    by vicndabx on Thu May 16, 2013 at 12:37:58 PM EST
    I do not share the concerns about supposed "slights" to the press, particularly since the DOJ's actions are perfectly legal.  Guess for me it's the proximity to risk here in NYC.

    Very few seem to be concerned about the actual leak of info that could've yielded more intelligence to protect not only Americans, but innocent civilians in other countries who are, often times, at greater risk than us.  This DOJ is not wrong for exercising its obligations under a law, that if I'm reading this page correctly, has been in effect since 1980.

    I guess it takes exposure to this stuff to change your perspective.  

    Washington Post (none / 0) (#20)
    by Slado on Thu May 16, 2013 at 01:05:57 PM EST
    Suggests there was no security risk.

    As an Obama skeptic I think they were mad they weren't allowed to break the news and crow about it.

    Call me Crazy.


    Okay, you are crazy (5.00 / 1) (#24)
    by MKS on Thu May 16, 2013 at 02:17:05 PM EST
    A lot of people were unhappy about the leaks.

    The way this issue is solved, and the correct balance struck, is to require FISA warrants....

    Parent

    Surprisingly Digby (5.00 / 2) (#27)
    by Militarytracy on Thu May 16, 2013 at 05:00:41 PM EST
    Is in agreement with Slado too.

    And I agree with Digby in that someone in this administration was going to brag about this operation.  This is the bragginest administration about such things.  Leaks they want leaked are okay, makes it really hard for some employees I suppose trying to figure out if this is a good leak (hooray) or a bad leak (go to jail) you are about to leak.

    Parent

    Look at that $hit (none / 0) (#21)
    by Militarytracy on Thu May 16, 2013 at 01:22:35 PM EST
    The press observed national security issues, and then the White House did not want them to have the lead on the story and AP took it anyhow.

    Throw in some shrieking publicans and it's time to slap down AP and slap them down hard.

    Parent

    Slado, (none / 0) (#25)
    by MKS on Thu May 16, 2013 at 02:24:28 PM EST
    are in favor of requiring judicial oversight of all searches, requiring FISA warrants?

    Parent
    Yes (5.00 / 3) (#26)
    by Slado on Thu May 16, 2013 at 04:37:16 PM EST
    I'm in favor of the press doing whatever it wants.

    It's up to the government to control it's leaks.   The press isn't breaking the law the leakers are.

    If we want to all agree that certain material should be kept a secret to save lives and that prosecutions are necessary then a separate judiciary or council seems reasonable.

    Seems crazy that cops have to get warrants to tap the phones of mobsters but not reporters or government workers.

    FYI I used to not feel this way when Bush was first in office but coming to this site made me realize it was a bad idea then as well.  

    Parent

    Really... (5.00 / 1) (#33)
    by ScottW714 on Fri May 17, 2013 at 09:53:57 AM EST
    ...how about when the reporter gets burned by a  political hack ?

    While I agree the press should be isolated, there are instances when the public has a right/need to know whose behind the mask.  But that determination should come from the judiciary.

    Exposing hacks can only make the press better and it's ridiculous to believe the press source anonymity supersedes any situation that puts people in harms way.

    Proving information to the public some with some responsibility and when that fails, there has to be accountability.  Total isolation in not in the best interest of the public IMO.

    Parent

    Good for you (none / 0) (#28)
    by MKS on Thu May 16, 2013 at 10:18:31 PM EST
    An (none / 0) (#41)
    by lentinel on Sun May 19, 2013 at 07:00:15 AM EST
    amazing post Jeralyn.

    So much detail and research.

    Thank you.

    US Admin Scramble To Get Story Straight (none / 0) (#42)
    by squeaky on Tue May 21, 2013 at 05:59:29 PM EST
    According to emptywheel, and the Times of London, the mole was pulled out of operation on April 20..  17 days before AP came to the US government asking to print the story.

    The mole got the device, and an suicide mission from AQAP, and instead of going through with the suicide bombing, delivered the bomb to the CIA.

    The government claim that we lost a mole who was going to lead us to the bombmaker is absurd, as how was that mole going to ever go back to AQAP?

    "Oh, hi, AQAP gatekeeper" -- their story must imagine the mole saying as he returned to AQAP -- "I've both failed in my mission and somehow lost the bomb you gave me, but based on that would you be willing to let me spend some quality time with even higher-ranking AQAP operatives?"


    It is not just about the mole (none / 0) (#43)
    by MKS on Tue May 21, 2013 at 08:58:45 PM EST
    But about his contacts and the means and methods he used....

    And just becasue he did not come back did not necessarily telegraph that he was a mole....

    It was a legitimate area of inquiry....

    The issue is the scope of the investigation, and requiring FISA warrants would be a good way of trying to prevent these investigations from reeling out of control.

    Parent

    From Emptywheel (none / 0) (#44)
    by squeaky on Tue May 21, 2013 at 09:26:55 PM EST
    Here's how three former high-ranking DOJ officials explained it in an op-ed today.

    The United States and its allies were trying to locate a master bomb builder affiliated with Al Qaeda in the Arabian Peninsula, a group that was extremely difficult to penetrate. After considerable effort and danger, an agent was inserted inside the group. Although that agent succeeded in foiling one serious bombing plot against the United States, he was rendered ineffective once his existence was disclosed.

    Please tell me how that agent was going to go back to AQAP and find the master bomber after losing the undie bomb and failing to blow himself up.

    contacts? means and methods?

    Really..

    It was a one man operation. Not so easy to get someone inside.

    It could be said that, had not Brennan blown it with his "insider" remark which Clark correctly interpreted, the AP article could have caused internal havoc inside AQAP by raising questions about who to trust. Other than that I cannot imagine who, or what you think was compromised...  

    My take is that they using this as an excuse for overreach, BushCo on steroids. Also, they are showing the Brits and Saudis that they are tough on leakers..  and not the types that would be so low to selectively leak in order score points for political gain aka braggarts.  

    Parent

    Agent need not go back (5.00 / 1) (#45)
    by MKS on Tue May 21, 2013 at 09:40:33 PM EST
    When you expose an agent, you expose all those who helped him.  Or you expose a weakness in  recruiting methods....

    I know you have your theory but that is a far stretch given the evidence....

    Parent

    Not My Theory (none / 0) (#46)
    by squeaky on Tue May 21, 2013 at 10:14:17 PM EST
    But one that makes a lot of sense to me... from emptywheel:
    I'm completely sympathetic to claims that the revelation that we had an infiltrator -- all follow-up stories to John Brennan's hints -- exposed the degree to which we are using infiltrators in AQAP. Though the prior exposure [outing] by Arabian peninsula sources of Mazin Salih Musaid al-Awfi and Jabir al-Fayfi, would have already have done at the time, as have Morton Storm's stories about trying to locate Anwar al-Awlaki have done subsequently. Moreover, Ansar al-Sharia's execution of three alleged spies in February 2012 shows that they were acutely worried about spies during precisely the time the mole in this case successfully infiltrated the group. I can also imagine that the revelation that we rolled up the plot because of an infiltrator and not because of Rapiscan machines or some other technological surveillance might have exposed anyone who helped the mole infiltrate AQAP.

    But damage from the revelation that we had a mole in the plot all traces back to John Brennan's ill-considered push-back on the AP story, not from the AP story itself.


    '
    Here is the ABC report on May 8, reflecting Brennan's insider reference...  much more damaging... oh and Brennan was promoted to head of CIA after this gaffe..

    The May 7th story by AP made no such inference. They said nothing about the bomber being anything but an AQAP operative that was caught before being able to complete his operation.