Progressive Idiocy: Missing The Obvious

Updated May 15, with new observations by Marcy Wheeler. Scroll to bottom of article to see.

The recently revealed targeting of Associated Press phone records by the Justice Department, which appears to have been both far reaching, unexplained, and possibly contrary to DoJ policy, is becoming yet another chance to see which liberal and progressive commentators have been asleep at the wheel these past few years.

First up is Steve Clemons, who wrote this in a Twitter message today:

Twitter message by @SCClemons

What's sad about this is that I've always thought of Clemons as being an astute observer of what's going on in DC. Yet here he is, basically without a clue as to what the Obama Administration have been up to these last five years regarding leak investigations and other actions against whistle blowers. Glenn Greenwald attempted to set him and others with this point of view straight today:

The key point is that all of this takes place in the ongoing War on Whistleblowers waged by the Obama administration. If you talk to any real investigative journalist, they will tell you that an unprecedented climate of fear has emerged in which their sources are petrified to talk to them. That the Obama administration has prosecuted double the number of whistleblowers under espionage statutes as all previous administrations combined has already severely chilled the news gathering process. Imagine what message this latest behavior sends to journalists and their sources: that at any moment, the phone records of even the nation's most establishment journalists can be secretly obtained by the DOJ, which has no compunction about doing so even in the most extreme and invasive manner.

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

[link from original article]

Even more sadly, Clemons is one of the smarter liberal pundits on this issue. At least he recognizes it as a problem. For an example of a journalist who doesn't seem to understand the problem, there's inveterate Obama-explainer Josh Marshall. After publishing an anonymous e-mail defending the DoJ's actions (which, as several of those links have said, the DoJ refuses to explain), he wrote:

I think there’s still a very live question of whether this was a prudent action on the part of the DOJ, as maximal restraint should always be used when subpoenaing journalistic records. But I do think he’s at least on to something that such an article would definitely have included more and different context if AP weren’t the party at issue and the ‘secretly’ phrasing does perhaps knowingly mislead.

A Conflict of Interest?

When a government agency retains records it obtained without notifying the target of those records long after its own guidelines say it should have, then that is as "secret" as I ever want to see it get. The DoJ is still refusing to purge or return those records, too. What does that tell you, Josh? Let's just say I find that article title more than a little ironic.

This is just the latest in a rather disturbing pattern of trying to control leaks that it doesn't want through any means at its disposal while freely making use of leaks it wants by the Obama Administration. As Greenwald points out, the Obama Administration has attempted to use the Espionage Act against whistle blowers more than all other presidential administrations combined. That such a longstanding and obvious policy could be such a surprise to people engaged in the profession of journalism is astounding. At least, it would be if I had been in a coma for the last few years. As it is, this is really just another example of the ability of progressives to not see what they don't want to see.

UPDATE: Kevin Gosztola notes that the AP may not have been the only news organization targeted:

“The Justice Department did not respond to a question about whether a similar step was taken in the other major government leak investigation Mr. Holder announced last June,” according to [New York] Times reporter Charlie Savage. So, it is unknown if the Times has been subjected to a similar fishing expedition. Regardless, the Justice Department engaged in this unprecedented act because people like Feinstein declared, “The leak really did endanger sources and methods,” and, “The leak, I think has to be prosecuted.”

No justification for Obama’s war on First Amendment

Like most of the links in this article's first paragraph, Gosztola's article is a good one for background on this issue.

UPDATE 2 (May 15): Marcy Wheeler makes an interesting point and a compelling one at her blog Emptywheel. First, the interesting one, concerning the subpoena the DoJ used to grab the AP's phone records:

[A]s this great piece by the New Yorker’s counsel, Lynn Oberlander on the issue notes, one of the worst parts of the way DOJ seized the AP records is that it prevented the AP from challenging the subpoena — and the details that are now being disputed — in court.

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.

I obviously don’t know better than Oberlander what would have happened. But I do suspect the subpoena would have been — at a minimum –sharply curtailed so as to shield the records of the 94 journalists whose contacts got sucked up along with the 6 journalists who worked on the story. Moreover, I think these underlying disputed facts — as well as the evidence that the gripe about the AP story (as opposed to the later stories that exposed MI5′s role in the plot) has everything to do with the AP scooping the White House — may well have led a judge to throw out the entire subpoena.

There’s a Place for Resolving Disputes, and the Administration Chose Not To Use It

So, the DoJ was trying to get around having to prove its case in court, which it quite probably would have lost. That brings us to emptywheel's compelling point, which should have been obvious to the Obama apologists in the press. That point is embodied in the article's title - there's a place to resolve such issues, and it's the courts. The Obama Administration simply went around that process and did what it wanted.

We're becoming more removed every day from being a government of laws.