The self-proclaimed “most transparent administration ever,” led by a president who said he rejected the false choice between security and liberty, is hardly recognizable to a huge swath of his base.
Monday afternoon, the Justice Department disclosed that it had secretly acquired two months’ worth of phone records of Associated Press reporters and editors as part of an investigation into unauthorized leaks to the press.
While the full scope of the scandal’s political significance is yet unknown, civil libertarians are unequivocally condemning the DOJ for what they say is a serious abuse of power and breach of public confidence.
“The government has no legitimate basis for having all of that information,” Ben Wizner, director of the ACLU’s Speech, Privacy and Technology Project, told MNSBC.
He called the scope of the records acquisition—covering all phone calls made from 20 separate phone lines over the course of two months—”amazing.”
“I can’t remember any case with this sweeping a request for information,” said Wizner.
Even sitting members of the president’s own party said they were uneasy about the Justice Department’s action.
“I’m deeply troubled by it, because I believe in the First Amendment…To me, this is deeply disturbing, and answers have got to come forward,” said House Progressive Caucus co-chair Keith Ellison of Minnesota.
“I want to know more about this case, but on the face of it, I am concerned that the government may not have met that burden. I am very troubled by these allegations and want to hear the government’s explanation,” said Senate Judiciary Committee chair Patrick Leahy, Vermont Democrat, in a statement.
Though it now appears that neither President Obama nor Attorney General Eric Holder authorized the phone records acquisition, they allowed the sort of environment in which such a thing could occur, said Jesselyn Radack, the Government Accountability Project’s National Security and Human Rights director.
“A really chilling tone had already been set with the war on whistleblowers, and this ups the ante by an order of magnitude,” she told msnbc.
The Justice Department’s seizure of AP phone records is only one incident in a prolonged and historically unique campaign against government leaks. “Obama has presided over the most draconian crackdown on leaks in our history—even more so than Nixon,” wrote political scientist Gabriel Schoenfeld in his 2010 Necessary Secrets.
“It’s a fact that there have been about half a dozen leak prosecutions [for leaks to the press] under the Obama administration, which is more than there have been under the Espionage Act in the entire history of the statute [prior to Obama’s presidency],” said Wizner. In other words: under Obama, more people have been prosecuted for leaking to the press than under every president since Woodrow Wilson combined.
Former CIA analyst John Kiriakou is among the more prominent leakers to be prosecuted by Holder’s DOJ. During a December 2007 interview [PDF] with ABC’s Brian Ross, Kiriakou said he had participated in the alleged torture of Guantanamo detainee Abu Zubaydah. In January 2012, the DOJ charged him with leaking classified information, infuriating progressive critics of Guantanamo detention and enhanced interrogation.
On Tuesday, Holder acknowledged to the press that there was no senior White House official specifically tasked with addressing Guantanamo issues. “We’re in the process of working on that now,” he said. “We’re looking at candidates.”
Radack has been involved in some of the other ensuing trials, notably as an attorney for ex-NSA official Thomas Drake, who pled guilty to the misdemeanor of “exceeding his authorized access to government computers” in 2011. Originally, Drake faced up to five counts of violating the Espionage Act, among other charges, for allegedly planning to leak the details of an NSA surveillance program to the media. The Justice Department dropped many of the original charges after a judge ruled Drake could not properly defend himself unless the government made public some of their surveillance methods, according to independent journalist Marcy Wheeler.
“It’s worse than Bush,” said Radack. While it was the Bush administration which “put into place the secrecy regime,” she told msnbc, “Obama expanded it much further.”
While the current administration has fought to jail leakers and keep details of its expansive surveillance programs under wraps, it has also blocked inquiries into what may very well be the centerpiece of Obama’s national security legacy: the unprecedented expansion and institutionalization of targeted killings.
“They have held this absolutely rigid line, that no public official has ever publicly discussed the secret campaign,” said Chris Woods of the London-based Bureau for Investigative Journalism. He described the administration’s insistence that no official had publicly acknowledged the targeted killing campaign as “laughable.”
Though administration officials have often hinted at the program or discussed it off the record, the Justice Department insists it has never formally confirmed or denied its existence. Last August the DOJ responded to an ACLU Freedom of Information Act request for documents related to the alleged killing of U.S. citizen Anwar Al-Awlaki by claiming they had never “officially acknowledged” any role in the killing or the existence of the relevant documentation. When the ACLU pointed out that Holder had said he would “certainly look at” a request to disclose the documents, the DOJ replied that such a remark did not amount to an acknowledgement of the documents’ existence.
“You have to at least give them good marks for consistency in their position,” said Woods.
The administration’s code of silence relaxed slightly last year when the administration acknowledged some of its military operations in Yemen and Somalia, describing it as “direct action” against suspected terrorists. However, journalists investigating non-military targeted killings by the CIA have still had to mostly rely on leaks from officials portraying the campaign in a positive light.
“The entire campaign has been characterized by selective leaks by officials,” said Woods. “Self-servingly, I’m sad to say.”
At a contentious Tuesday press conference, Holder said that more information about drone strikes would be publicly available.
“We are in the process of speaking to that,” he said. “I have made a promise, that is a promise I think will be kept both by me and by the president in a relatively short period of time. We have a roll out that will be happening relatively soon.”
He also defended the Obama administration’s civil liberties record, saying he was “proud of what we have done.”
“This administration has put a real value on the rule of law and our values,” said Holder. “I think the actions we have taken are consistent with both.”
Ned Resnikoff is an urban policy analyst, researcher, writer, and editor. His byline has appeared in a variety of publications, including the New York Times, San Francisco Chronicle, Dissent, and The Nation. He writes the newsletter Public Comment, which can be found at publiccomment.blog.