The only thing surprising about the revelation yesterday that the Justice Department seized the phone records of AP reporters, is that anyone still cared enough to express outrage.

In a world where both parties (with the implicit support of almost everyone in the country) gladly support the PATRIOT Act and sternly denounce intelligence leaks as the worst breach of security ever, how can anyone be shocked or dismayed that the Justice Department used its broad investigative powers in an effort to stop a leak?

Conservatives, liberals, and reporters alike have little room to seriously complain…

Almost exactly one year ago, the Associated Press got a tip that the CIA had successfully put the kibosh on a nascent plot in Yemen best described as “Shoe Bomber II: Electric Boogaloo.” From a contemporaneous account:

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.

U.S. officials, who were briefed on the operation, insisted on anonymity to discuss the case, which the U.S. has never officially acknowledged.

The claim that “a sensitive intelligence operation was still under way” is significant because, as hard as this may be to believe, there’s actually no law against disclosing classified information:

Instead, leak prosecutions rely on a 1917 espionage statute whose principal provision makes it a crime to disclose, to persons not authorized to receive it, national defense information with knowledge that its dissemination could harm the United States or help a foreign power.

To win such a case at trial, prosecutors have to prove to a jury that the leaked information met that standard, including showing why its disclosure was harmful.

If the operation was still underway, the premature leak could meet that standard.

Late last week, Ronald Machen, the U.S. attorney in Washington, wrote the AP to inform them that the government seized the records for more than 20 AP phone lines in April and May of 2012. The letter did not identify the investigation, but, it’s this leak.

Putting aside the time-tested doctrine of herpus derpus Obamus, of course, nothing about the AP matter merits conservative outrage. Republican Senators seemed pretty ticked off about this leak in February when they were grilling John Brennan over whether he was the source.

If motivated by a desire to stop terrorist plots and protect the intelligence community at all costs, this should inspire a rare instance of Republicans applauding the Obama administration for doing, you know, EXACTLY what the GOP supported the Bush administration for doing.

Liberals cried foul, even though the administration they feel walks on water has consistently prided itself on its harsh response to leaks (as Bradley Manning could tell you) and largely keeping its arbitrary drone war plan secret for years.

If you sanctimoniously think this is an “unprecedented” intrusion, revisit the sheer scope of currently legal government surveillance power. Given the powers provided by the PATRIOT Act, and employed by the government over the last decade, this seizure is mundane. Go ahead and be outraged about the reach of the government if you want, but get some perspective before taking a stand over AP phone records.

Reporters have the best reason to be miffed. But juxtaposing this against the mad rush of the media to trod on the privacy rights of individual after individual they incorrectly reported to be the Boston bomber while trying to scoop each other, the impact here is nothing.

The story itself wasn’t even worth going out on a limb to publish. It exposed no government scandal or abuse, it was just a run-of-the-mill “America F**k Yeah!” story about foiling another terrorist plot. Indeed, it impliedly celebrated exactly the same aggressive government enforcement actions that now come back to bite them. To quote the master, “This is like O. Henry and Alanis Morissette had a baby and named it this exact situation.”

Journalists complain that this might chill government sources. Sure. But since the government source involved was arguably committing a federal crime punishable by the death penalty, there was already a deterrent. The government is not in the business of making the laws of this country easy to circumvent.

The greater concern is the fact that the DOJ got ahold of records that might identify confidential sources leaking embarrassing, but not criminal, information. To that, we come back to square one, protest the extent of authorized government power, don’t act like this particular event is THE egregious act.

And that’s the final takeaway from the outrage over the AP scandal: the fixation on this event just exposes everyone’s complicity in laying the groundwork for this moment.

Gov’t Obtains Wide AP Phone Records in Probe [AP]
For U.S. Inquiries on Leaks, a Difficult Road to Prosecution [NY Times]
AP, Tea Party, Bloomberg Clients All Being Monitored Just Like You [Gawker]
Why Did the Government Secretly Obtain Two Months of AP Phone Records? [Gawker]
U.S: CIA Thwarts New al-Qaeda Underwear Bomb Plot [USA Today]

Earlier: Blood-Soaked White Paper Outlines Legal Reasoning Behind Drone Assassinations


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