Blogger Marcy Wheeler discusses the DOJ’s surreptitious collection of Associated Press phone records after two reporters scooped the White House on the foiled “UndieBomb 2.0” plot; the Saudi undercover infiltrator (on the payroll of the British and Saudis) at the center of the alleged AQAP terrorism plot; the Obama administration’s war on (unflattering) leaks and confidential media sources; and the biometric ID proposal in the new immigration bill.

(Transcript below)

Scott Horton interviews Marcy Wheeler
The Scott Horton Show
May 14, 2013

Podcast here.

Transcript

Scott Horton: All right y’all, welcome back to the show. I’m Scott Horton. This is my show, streaming live from my website, scotthorton.org. I keep all my interview archives there, more than 2800 of them now going back to 2003. Full show archives too, last few years’ worth, anyway, at scotthorton.org. Also streaming from noagendastream.com, No Agenda Global Radio, and all over the place, talkstreamlive.com for one.

All right, first guest, Marcy Wheeler, emptywheel they call her in the blogosphere because that’s the name of her blog, and I’m very happy to talk with you again. Hi, Marcy, how are you?

Marcy Wheeler: Hey Scott, how are you?

Horton: I’m doing great. Appreciate you joining us today. So you’ve already got three at least, last time I checked, I guess it could be four now, articles about the Department of Justice’s persecution of the Associated Press. Give us the low down.

Wheeler: Man, they went nuclear on these guys. They – apparently last Friday the AP got a letter, which nobody has seen except for the AP, saying, “Oh, by the way, some time ago we grabbed the phone contact information for 20 phone lines in four offices and at least two of your reporters’ home lines from April and May of last year.” And that’s about all we know that they said. It’s not even clear that they said “and we did this because you guys apparently scooped the White House on announcing a CIA-thwarted Al Qaeda in the Arabian Peninsula plot by eight hours,” which is really what this is about. It goes back to May 7th of last year. The AP reported that the CIA had thwarted Undiebomb 2.0. I think you and I actually talked about this last year.

Horton: Yeah, we did. And in fact, let me – pardon me, but let me interrupt you for just a second. I think people might be familiar with this if they spend much time on Facebook like I do – and I don’t know why I do, I’m just stuck to that thing – but anyway, the headline in The Guardian made it seem like they were talking about the Underbomber from Christmas 2009, Abdulmutallab, saying he was a CIA agent or something like that, and so the truthers like passing that one around. People are probably familiar with that headline because it’s a misleading one, everyone loves it so much. But in fact that article was about this plot where in fact it was an inside job, it just (laughs) didn’t get as far as someone actually trying to light a bomb in their underpants over Detroit is all.

Wheeler: Yeah. I mean, what the AP reported made the CIA look good. They said, “Oh my gosh, CIA’s interrupted this plot, good for them, whoopee whoopee.” And they said in there, you know, “We figured this out last week. The White House said, ‘Don’t go with the story yet.’ We held off, and then they told us that they were going to roll out this big announcement tomorrow morning so we’re publishing now.” That’s what the AP story said. And that came out at about, I don’t know, 3 o’clock in the afternoon. So John Brennan gets on the horn –

Horton: And now the actual plot then – do I understand it right, Marcy, that the actual plot was basically one of these FBI put-up job type things?

Wheeler: Well it wasn’t FBI. It was the Saudis –

Horton: No, but I mean in the sense of the entrapment and the way it was never meant to go anywhere, it was just enough to bust somebody, right?

Wheeler: No, it was even worse than that. I mean, that’s the thing. This is where – what John Brennan did was – because the guy who was going to carry out the plot was a Saudi-British infiltrator into AQAP. So we think that Abdulmutallab really believed that he was an Al Qaeda warrior, right?

Horton: Mmhmm.

Wheeler: The guy who did this plot was in the pay of the British and the Saudis. So, I mean, it was an inside – you know, it was a sting. In fact, all we did was prove that Ibrahim al-Asiri still is willing to give some mope who walks in off the street explosive underwear.

Horton: Right. So, in other words, what they made this scandal out of was the behavior of the informant, not the guy, not anyone he was really successful in duping, is what you’re saying.

Wheeler: Yes, precisely. Precisely.

Horton: Okay.

Wheeler: And we only found out that it was a double agent – I mean, double agent isn’t actually the right term, but we’ll call it a Saudi infiltrator but that’s not even – that’s shorthand. We found out that it was a Saudi infiltrator not from the AP but because John Brennan got on the horn and he called all of his former, all the people who used to have his job, counterterrorism czar at the White House, and said, “Look, you know, the AP just broke this story and I know you’re about to go on your TV stations, and just so you know, we always had inside control of this.” So he’s the one who said that it was an insider, that we had somebody in the middle of the plot, and then Richard Clarke, who’s a pretty smart guy, knows how this works, says, “Huh, inside control sounds to me like an insider.” I don’t know but I suspect he called some Saudis who were already blabbing about this and they confirmed that his suspicions were correct, and so ABC actually broke the most damaging part of this which is that the Brits and the Saudis had infiltrated this guy into AQAP. But even there, the last time we had an AQAP plot targeting the United States, the Saudis and the Yemenis revealed that themselves, which was back in 2010, the toner cartridge plot. We had sources in the Middle East bragging about having gotten this former Gitmo detainee, Jabir al-Fayfi, infiltrated into AQAP. So even there, it was bad, it’s stupid, that shouldn’t happen, but that happened the last time we had one of these Saudi infiltrated ops.

Horton: Mmhmm. So – I don’t really get it. So the White House got really upset that these reporters revealed their sort of pseuobogus sting – was it, what was the point? They wanted to make a big orange alert out of it, it sounds like, but then you say it was Brennan himself, Obama’s counterterrorism czar, now the head of the CIA, right, who undermined, you know, just what a big deal it was, that they had stopped something that was a real threat. He said, “Oh, it wasn’t a real threat. It was a put-up job by us.”

Wheeler: Yeah, and you know I think – and I did a post on this last year, looking – because they did do, the White House did do a big dog and pony show to announce the thwarted toner cartridge plot, and we have every reason to expect they would have done precisely the same thing last year Horton:when this, you know, quote quote underwear bomb plot was quote unquote thwarted. That’s what they wanted to do. They wanted to get the news cycle. They wanted to be able to spin this out the way they wanted –

Horton: And then later they chose to downplay it.

Wheeler: – and that’s all the AP prevented them from doing. That’s it.

Horton: Mmhmm. And then later they chose to downplay it once the AP scooped them. Basically.

Wheeler: Well, I mean I think Brennan is just, you know, he just screwed up. But meanwhile, I mean, part of the other thing that was going on is the Republicans getting really sick of the Obama administration doing kind of politicized leaks and they figured this was an opportunity to make hay over it. Peter King, who loathes the reporters in question – the reporters are Adam Goldman and Matt Apuzzo are the two main reporters and they were the ones who broke the NYPD spying story and got a Pulitzer for it about this time last year. And Peter King loathes them because, you know, he loves Big Brother, he loves Ray Kelly, and so he really went on a rampage. And so I think what really happened is it made it really convenient for the White House to launch an investigation into that story, but not, for example, launch an investigation into all the convenient leaks on drone targeting that were happening at the exact same time. You know, so even then the White House is picking and choosing which highly classified stories they wanted to investigate, which ought to tell you something.

Horton: Sure, of course. I mean, they deliberately leak things all day. “Anonymous administration officials claim,” that’s almost always because it’s classified.

Wheeler: Right. Well, yeah, I mean – and you know what it is, is like so often there’s [9:25 unclear] classified information. What this administration wants to be able to do is have absolute control over when and how stories come out. They’re happy to leak classified information. That’s what the White House is going to do in this case. They just want to have complete control over the spin on that story. They don’t want to be preempted by actual real reporting. And that’s what this is about. This is a campaign against actual real reporting as opposed to White House managed spin on classified stories which they don’t have any problem with.

Horton: Right. And then, okay, so now – I don’t know how to compare this to any sort of legitimate police activity, but did they just go absolutely completely overboard with the records that they took, or with the wiretapping – were they tapping the phones, or they were just after the fact they went to look at who got called by who, and how much overreach is this on a scale of 1 to Richard Nixon or something?

Wheeler: It’s not Richard Nixon, as far as we know. But the problem is – and they didn’t wiretap the phone calls. What they got were the phone records. So in other words, what they have is a list of every call out from these 20 AP lines for two months. They know everybody the AP from these four offices, these journalists’ personal cell phones, home phones, they know everybody they called for a two-month period. Which means they have some idea of the potential sources for the story that they claim to be investigating, but they also know everybody that the AP in this four-office area is using as a source. And so that’s where I suspect that this will be legal to a point, but I suspect that DOJ couldn’t have actually gotten subpoenas for this if they had told the AP ahead of time, because DOJ requirements say you need to minimize. You need to get only what you need. You also need to negotiate with the journalistic outlet to do that, to minimize what you’re asking for. And instead of doing that, they claimed, in one of the most public leak investigations in the last 10 years, and there have been many public ones but this one’s huge, they claimed that that would impair the investigation. So in other words, we all know this investigation’s been going on, but they claim that by making it publicly known or even making it publicly known to the AP that they were going to start going after reporters’ contacts, it would ruin the investigation.

Horton: Now, what’s the reaction been, I guess, in the rest of the press? Because the AP is the AP. It’s not like somebody that’s easy to pick on. That’s the big time, right?

Wheeler: Yeah, and I mean I don’t even think it had to be the AP. I think that people in journalism are really appalled by two things: One is that the AP got no advance notice and the second is that they took so many phone calls. I mean, there are a couple examples from the Bush administration, particularly one with John Solomon going back to 2001 where they took just his call number, call contacts, and didn’t tell him until after the fact. And there was a pretty big outrage then, but it was just one journalist. And in this case they’re taking 20 phone lines, which is where it really becomes clear overreach. I mean, there’s not a really easily conceivable reason why they would need to take all of that.

Horton: They’re just fishing to see what else they can find as long as they’re at it.

Wheeler: And they’re also, you know, they’re also basically threatening journalism. You know, they’re saying, “If you publish a story – if you preempt my story.” They’re not even saying, “If you publish a story on a leak that I don’t want you to publish,” they’re saying, “If you preempt my ability to spin out a story the way I want to, I’m going to take and ruin your source base across 20 phone lines.” That’s what they’re saying.

Horton: Yeah. Well, and just think about what they’re learning too about how the AP works and what all their sources and methods are and all their, you know, stuff that is none of their business at all.

Wheeler: Right, and then that’s what we found out – that’s how we found out about this. The AP president wrote a letter to Eric Holder saying, you know, “this is gross overreach and you’re taking our core business,” and it’s true. I mean, this changed – in addition to Goldman and Apuzzo, there were a couple of other national security journalists. One of them is Kimberly Dozier. She had another story in that same time period that basically relied on what I think are military sources complaining about John Brennan doing things with drone targeting. Now they know who those military sources are. So they’re getting more than they need, and it’s, you know, it’s like a pitcher hitting a batter. They’re doing it deliberately and they’re doing it to get reporters to back off and let them spin their stories the way they want.

Horton: Mmhmm. And now, the national security letter versus subpoena. I think the first I heard about this, it was some kind of just executive subpoena or administrative subpoena or NSL, or was this from the court?

Wheeler: Yeah, we don’t know. And it’s not even clear AP knows. Probably it was a subpoena, and if it was a subpoena all those rules I talked about earlier would apply, meaning DOJ would have had to go to a judge and claim, you know, “We’ve tried everything else. We just can’t get these records. We can’t figure out who leaked this information except by getting these records, and you know we think two whole months just to get the sources for one story” – and they got call records for three weeks after the story itself. So there’s, you know, it’s grossly expansive, but if they got a subpoena – I’m sorry, they don’t actually need a judge. All they need to do is get Eric Holder to sign off on it. But then there is another option, which is national security letters, where Holder doesn’t even need to sign off on it. The DOJ recently in 2011 changed their policy and said, “You know, we think it’s okay to use national security letters with journalists in certain national security investigations,” which this would be. So no judge. They get to decide whether they’ve met their own standards for broadness and whether they’ve met their own standard for whether telling the AP they were going to go get these phone records would have impaired the investigation. And that’s the problem. It’s basically DOJ deciding on itself it’s going to go nuclear against one of this country’s, you know, pretty, pretty moderate – I mean, they’re not flamethrowers, the AP, by any shade – but they’re going to go out and take out much of the national security staff.

Horton: Yeah, but, that’s what the Fourth Amendment says, that the right to be secure in your person, house and papers in effect shall not be violated unless a cop feels like it.

Wheeler: (laughs) Well, or in this case unless Attorney General Holder feels like it.

Horton: Yeah.

Wheeler: And that’s the thing. I mean, what’s really important to remember is DOJ does this all the time. You know, DOJ does this all the time particularly against Muslims, but they use this kind of investigative method without court oversight all the time. So to some degree the fact that they did it to a bunch of journalists really should only tell us that they have no limit. You know, that they have lost all sense of perspective on these authorities. But we should remember that, you know, you and me – I mean, because they’re going to claim that we’re just crazy people and not journalists like the AP – and more especially, you know, people of color, are going to be exposed to these investigative tactics a lot more than the AP.

Horton: Yeah. Well, and now, (laughs) I’m sorry, this is kind of a silly question, but what if any accountability do we expect for what’s happened here?

Wheeler: We’ll see. I mean, what’s interesting, it was pretty bad timing on the part of DOJ because Eric Holder already had an oversight hearing scheduled for Wednesday and so he’s going to have to answer some questions about this from the House Judiciary Committee on Wednesday. I suspect that – like I said, it’s not even clear the AP knows how DOJ got these records. So I think they’re probably going to challenge, you know I assume they’re going to challenge this in court if DOJ doesn’t start negotiating with them right away. I suspect that DOJ will try and avoid going to court because some of their arguments are going to be untenable in court. But who knows? Maybe one of the things DOJ is trying here is not only to go nuclear against the AP but also to establish this broad new standard for journalists that would make journalists’ contacts unprotected. That’s possible. I mean, one of the things I note is that you would think this would have been investigated in Virginia, which is where the CIA is. It’s supposedly a CIA secret that got leaked, so it normally would be. But there’s a case in Virginia where it may reinforce the notion that journalists do have some protection against this kind of subpoena, and so I sort of wonder whether DOJ went to DC because in DC you’ve got the DC Circuit which is full of crazy people who love executive power.

Horton: Yeah. Well. I’m kind of I guess pleasantly surprised to hear you say that it’s any different in Virginia. I always thought that they had the reputation of being just as harsh, but I guess in this case there’s one little wrinkle in it, huh?

Wheeler: Yeah, there’s – I mean if you remember the James Risen-Jeffrey Sterling case?

Horton: Yeah.

Wheeler: Based on Merlin? Well in that case, there was a hearing on whether or not Risen would be subpoenaed almost a year ago today. I mean it was May 18th of last year, and the judges still haven’t ruled in that case. But they seemed a little skeptical of what DOJ was saying and the judge in that case has already held that Risen didn’t need to testify in court. So I think, you know, it’s possible, and I’d have to check whether Holder announced that DC was going to get this before – I’d have to check on the timing, but it’s possible that Holder, having seen how skeptical the judges were in that case, threw it into DC because like I said the DC Circuit is full of crazy people right now.

Horton: Yeah, well, there’s no surprise. Okay, now listen, in the last few minutes here I was hoping you could tell me about, I didn’t even have a chance to read it but I saw that you wrote a thing about the biometric national ID card, at least de facto national ID card, in the new immigration bill, and I was wondering if you could give us the bad news there.

Wheeler: Yeah, remember Real ID was this effort to make sure anybody who got hired in the United States was eligible to work. And they always roll this out every time they talk about immigration, and as it exists as of now – I mean they’re marking up the bill right now, but as it exists, the new comprehensive immigration reform doesn’t require ID, which in my mind if you’re going to develop this database of biometrics, IDs would be better, but just wants to put together a database of biometrics from everybody who has a government-issued ID in this country, so it effects the same thing. I mean, in other words, it collects all the same information that makes Real ID a problem, and so they would have, you know, retina scans and stuff from you and I just because we have driver’s licenses. But of course it wouldn’t at the same time allow for universal voting registration, which is what other countries with universal ID use them for. So, it’s kind of the worst of all worlds. And then add to that the fact that in the last year the government has basically given to National Counterterrorism Center the ability to get any federal database they want so long as they say it has terrorist information, and you can see how quickly this database tied to employment would be used to, you know, data mine you and I along with potential terrorists to see whether we can be arrested or what have you.

Horton: Right. Yeah, it’s amazing. I mean, under the Constitution as I understand it, the national government isn’t even really in any position to even know who the people in the country are. You know? We don’t even – you know, unless they’re delivering the mail to us, in that sense, something like that. But now it’s getting to the point where, well, jeez, they’ve been collecting all our digital information like this at the state level all along and now all they’ve got to do is integrate it and turn the whole country into Minority Report with a flip of the switch basically, with the passing of a law.

Wheeler: Right. And that’s what, that’s what’s – I mean, the move alone is concerning because, you know, it basically does what Real ID always would have done. But done together with the way they do counterterrorism programs is what makes it so scary, because they’ve already done – I mean, for example they’ve said, “Okay, we’re going to take this immigration database, because sometimes terrorists immigrate, and we’re going to dump it into the data mining program that National Counterterrorism Center always uses,” so they’re going to do that kind of thing but they’re going to do it with the data – you know, they would have the authority to do it in any case, they’re going to do it with a database that would include every adult. That’s where we’re headed.

Horton: Well, you know, I saw a really cool ACLU statement on this, better than I would have thought, where they talked about how, “Well, you know, in the future it’s going to be like you’re going to have to use this biometric data to do anything, to go anywhere, and it’s fundamentally” – as Newt Gingrich would say, “fundamentally and profoundly changing the relationship of the individual to the state. We’re moving into a situation where we will have to all ask permission to do anything.” Which is, it’s funny the way they put it because that’s exactly the way I was taught it is in the slave state of the Soviet Union when I was a kid. “In America, you’re free unless you really commit a crime, do something wrong, then the government will come and get you. But other than that, you do whatever you want. But in the Soviet Union, you got to ask first and mostly you just go along with what they want you to do.” And that was the exact phraseology of the ACLU statement there.

Wheeler: Right. Precisely. And that’s the thing is that it’s been increasing like this for 10 years, 12 years now. I mean, we talk about this all the time. And, you know, some of the databases are invented for different reasons and this one is invented so as to placate Republicans and allow the people who do our labor for us to actually live legally. I mean, you know, so it’s a tradeoff and people are making the tradeoff for good reasons, but they’re not thinking through the consequences of what’s going to happen to this database and how it will get reappropriated, and there you have it.

Horton: Oh, yeah. Well, no, see I don’t think it’s any of my business who you employ at all, database or not, so. That’s the whole thing.

Wheeler: Right, exactly.

Horton: You know, I remember, jeez, probably the late ‘90s, it was the deadbeat dad database. “Oh, you know what? The national government needs to know where everyone in America works at all times. You know, because of deadbeat dads.”

Wheeler: Right.

Horton: And everybody was just like, “All right, whatever, if you say so.” So I guess that was kind of the first sort of attempt at this, and they’ll use immigration or any other excuse that they can and create as many databases as they can. See, what’s fun is, sooner or later it’ll just be a matter of computer power, right, where your license plate is tied to your IRS account and all of your health care and all of your traffic warrants in other states and everything, and the traffic cameras picking you up, and it’s all tied together, you know? Not too far from there at all. With your iris, the print of your iris.

Wheeler: Right. And yet, and yet all of those databases didn’t find the Tsarnaev brothers before they struck in Boston. It’s not actually working for its intended purpose.

Horton: Right.

Wheeler: But it is working for a bunch of other purposes that are secondary and not advantageous at all.

Horton: Yeah, it’s sad but true. All right, well, listen, I really appreciate your blogging and all your writing and your time on the show as always.

Wheeler: All right, take care.

Horton: All right, everybody, that is Marcy Wheeler, emptywheel.net is her blog, and she’s already got three on the Associated Press beginning with I think DOJ Goes Nuclear on Goldman and Apuzzo.

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