Civil libertarians and others are understandably outraged by the news of a DOJ investigation that included obtaining AP journalists’ phone records. It’s skating on thin constitutional ice to have government agents investigating whom members of a free press contact and when, and it merits careful oversight to avoid abuses. Nevertheless, based on what we know to date, I think the DOJ did the right thing for two principal reasons:
First, this wasn’t a leak about some garden-variety (pun intended) pot-growing or cocaine-smuggling operation getting busted, or even a bribery scandal involving high-ranking public officials. It didn’t involve “whistle-blowing” on any wrongful government behavior. This leak reportedly related to the successful infiltration of freakin’ al Qaeda in Yemen that effectively prevented a terrorist attack using an advanced type of bomb that is allegedly undetectable by airline security. A Saudi double agent with cojones of steel managed to get himself chosen as the lucky volunteer to be be the suicide bomber — then made off with the bomb, delivered it to the good guys for analysis, and vanished. That’s the kind of incredible espionage story with a happy ending that I’d expect to see in a Hollywood thriller, not real life.
This top-secret information was leaked to AP reporters by an unknown source. If the timing had been different, the agent(s) involved would have faced certain execution (if lucky) or torture; the bombing plot may well have succeeded, killing at least a couple hundred innocent civilians; and if so, the United States would have been thrown into a state of fear and panic as after 9/11. This is presumably why Attorney General Eric Holder said it was one of the most serious leaks he’d seen in his long career.
That’s probably enough for 90% of the general public to nod their heads and agree that the DOJ should leave no stone unturned in investigating this particularly egregious leak. There are leaks and there are LEAKS. Despite the conclusions many have leapt to, this was no fishing expedition on a whim. DOJ only resorted to subpoenaing AP journalists’ phone records after FBI agents had interviewed hundreds of people at the White House, the Pentagon, the NSA and the CIA. That’s some serious stone-turning.
For the most committed lifetime ACLU members and Chelsea Manning fans, though, there’s another, more strategic reason to tolerate this kind of investigation for the greater good. Looking at potential second-order consequences of this very series of events, the free association and privacy rights protected by the First and Fourth Amendments face more serious threats. Suppose the leak happened earlier, the operation was compromised, and the terrorist attack was carried out. Consider when and why the USA PATRIOT Act was passed: As a direct response to a terrorist attack on American soil — by an overwhelming majority in both houses of Congress on a bipartisan basis (98-1 in the Senate).
Historically, the most troubling expansions and abuses of government power in the United States — from warrantless wiretapping to internment of Japanese-Americans — have taken place after, and been justified by, actual or perceived threats to national security. It does no good for those who dwell in ivory towers to wish for a general public and elected representatives who place a higher value on civil liberties as a matter of principle than on national security and counter-terrorism interests. That simply isn’t the world we live in. As a matter of realpolitik, the way to advance the cause is to recognize when compromise is necessary to achieve progress.
Personally, I’d like to avoid more senseless slaughter of civilians by terrorist organizations and more invasive laws passed in response to such atrocities—whether they involve obtaining library checkout records, monitoring data packets transmitted over the Internet, or what have you. If that means sacrificing the privacy of AP phone records for these two months, so be it. It’s worth remembering AP journalists themselves are not being investigated, threatened or charged with any crime; their calls merely serve as evidence to pursue or confirm the source of the leak regarding Al Qaeda. Nobody forced them to knowingly receive classified information from someone who was plainly committing a serious crime by divulging it — and there isn’t even a fig leaf of whistleblower-type moral high ground to invoke in defending the breach here. In a media business driven by scoops, it was simply a scoop too juicy to resist.
Connect with social media lawyer and concerned citizen Antone Johnson on Mastodon or Bluesky Social.