According to Peter Scheer, a lawyer and executive director of the First Amendment Coalition (FAC), “the real outrage about the Justice Department’s use of secret subpoenas for the phone records of Associated Press journalists is that…it was probably legal.”

Although federal prosecutors need a court’s OK to obtain the content of phone communications (and most, but not all, email communications), nothing in the relevant federal statute (the Stored Communications Act) requires a prosecutor to satisfy preconditions or to submit to judicial oversight when subpoenaing “metadata” associated with a phone number.

Also relevant are Justice Department guidelines for issuing subpoenas to the media. The guidelines, adopted in the 1970s, contain meaningful (albeit mainly procedural) limits on prosecutors’ discretion. However, the guidelines are just voluntary internal policies, without the force of law. Even if prosecutors failed to follow the guidelines in the AP matter — which is possible, perhaps probable — that dereliction and $2 will buy AP a cup of coffee.

What about the constitution? The Supreme Court dispensed with your Fourth Amendment right to privacy in this area long ago in an obscure and regrettable decision, Smith v. Maryland (1979). The Court ruled that phone company customers have no legitimate privacy interest in phone record data that are in the hands of a third-party, like a phone company.

This should be a lesson in how the so-called rule of law can often be a sham. Legal doesn’t mean good. The government has built up an entire legal edifice to legitimize all kinds of abuse, from surveillance to police brutality.

Legal or not, this scandal has undeniably underscored the Obama administration’s utter disdain for both the press and for personal privacy. The extent of dragnet-style domestic surveillance in the Obama era has been unprecedented. Julian Sanchez, a research fellow at The Cato Institute, writes in Mother Jones that the government is spying on journalists far more often than we think.

Lynn Oberlander at The New Yorker has another worthwhile piece last week about the legality of the DOJ’s actions. Read it here.

I was asked by Al Jazeera to give a short commentary on the AP snooping scandal on their program The Listening Post. The show also has interviews with journalist Jeremy Scahill, Dana Priest of The Washington Post, and Ben Wizner of the ACLU.

IN THIS ISSUE

  • Pledge Drive
  • Top News
  • Opinion and analysis

Donate Today!

Pledge drive is here.  Please visit Antiwar.com/donate.  Call 323-512-7095 for more information. 

This week’s top news:

UN General Assembly Backs Regime Change in Syria: The UN General Assembly has passed a non-binding resolution calling for the ouster of Syrian President Bashar Assad and backing the rebellion against him. The vote was opposed by Russia as well as a number of nations expressing concern about foreign intervention in Syria’s ongoing civil war.

Continue

james-madison-painting

“A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home.” -James Madison

As previously discussed in these spaces by Kelley Vlahos, Lucy Steigerwald, and myself, a group of senators are mulling a revision to the 2001 Authorization for the Use of Military Force against those who perpetrated the 9/11 attacks. In Senate testimony today, several Pentagon officials tried to dissuade making any changes to the law, which has been notoriously beneficial to the expansion of the warfare state and terribly detrimental to the rule of law, government transparency, and human liberty in general.

Indeed, “the AUMF opened the doors to the US wars in Iraq, Afghanistan and Libya; attacks on Pakistan, Yemen, Somalia and Mali; the new drone bases in Niger and Djibouti; and the killing of American citizens, notably Anwar al-Awlaki and his 16-year-old noncombatant son,” write Michael Shank and Matt Southworth in the Guardian.

“It is what now emboldens the hawks on the warpath to Syria, Iran and North Korea,” they add.

One of the witnesses today, Assistant Secretary for Special Operations Michael Sheehan, said keeping the 2001 AUMF in place is important to facilitate the ongoing “war on terrorism,” which, he said, will last “at least ten to twenty [more] years.” And thanks to the terse wording of the law, that war has no geographic limit. Any individual or group unilaterally deemed an “associated force” by top officials can be targeted by the U.S. war machine anywhere in the world. And this extraordinary power cannot be rescinded until the overlords in the White House and the Pentagon say so.

It’s ironic that Sheehan made such a dramatic prediction of continuing to fight this “war,” if you can call it that, for another ten to twenty years when top national security officials have been noting publicly al-Qaeda’s growing irrelevance. Danger Room:

It was just two months ago the top U.S. intelligence official testified that al-Qaida had been battered by the U.S. into a state of disarray. A year ago, the current CIA director, John Brennan, said that “For the first time since this fight began, we can look ahead and envision a world in which the al Qaeda core is simply no longer relevant.” Just this week, the commander of the Joint Special Operations Command, Army Lt. Gen. Joseph Votel, told a Florida conference that he was looking at missions beyond the counterterrorism manhunt.

So why insist on keeping the blank-check-for-war AUMF intact?

First, the 2001 AUMF was a wet dream for the Masters of War in Washington who yearn for the day when any and all constraints on their actions in the realm of “national security” would evaporate. It carries with it immense, unchecked power that they are wont to preserve.

Second, in order to continue to carry out their Imperial Grand Strategy, they need to perpetuate a bogeyman. Without a monster to destroy, the public is much less apt to grant the state carte blanche to make war at will and keep it secret.

In an interview last year, former Secretary of State Colin Powell lamented, in a moment of candor, the fall of the Soviet Union. He described, admittedly with some irony, how apparently remorseful he and others in the military establishment were that America “lost our best enemy.” He said it was “one of the biggest challenges” he “ever faced” when the Cold War ended. That is, when we became much safer as opposed to when we might have faced a new enemy.

Absent the pretext of the Soviet threat, the thinking goes, how will we justify the expanding military and national security state? Powell says of the trumped up Soviet “threat” in no uncertain terms, “we’ve got a good thing going here.” The system – the “whole structure,” as he calls it, far from aiming to eliminate threats, “depended on there being a Soviet Union that might attack us.”

Al-Qaeda’s unlikely success on 9/11 helped change all that, and ever since, Washington has had a bogeyman to help justify expanding the warfare state.

In the March/April 2012 issue of Foreign Affairs magazine, Micah Zenko and Michael A. Cohen argue that we have a system that fuels unnecessary alarm and paranoia. “Warnings about a dangerous world also benefit powerful bureaucratic interests,” they write. “The specter of looming dangers sustains and justifies the massive budgets of the military and the intelligence agencies, along with the national security infrastructure that exists outside government — defense contractors, lobbying groups, think tanks, and academic departments.”

With any luck, the pleadings of the highest Pentagon officials won’t be heeded and AUMF can, as it should, be repealed. Unfortunately, that is not at all likely.

5647123192_c97978ed1f_z

Via NPR, Holder said yesterday in a news conference that he’s not sure how many times he’s signed off on Justice Department requests to spy on journalists:

“I’m not sure how many of those cases…I have actually signed off on,” Holder said. “I take them very seriously. I know that I have refused to sign a few [and] pushed a few back for modifications.

Could he give a ballpark? Could he even vaguely reassure reporters that it is a very rare occurrence? No, all he can manage to say is he has nixed “a few” efforts to spy on journalists.

It’s hard not to suspect that the Justice Department’s snooping on journalists from the Associated Press is far more common than anyone has so far suggested. In this latest case, they just had the misfortunate of getting caught.

Here’s a few wise words from Harvard professor of international affairs Stephen Walt on Twitter:

With the manufactured Benghazi scandal tying with the IRS for the story that the right is pretending is a story, it’s worth looking back at what a real scandal looks like. Most people think of Watergate when they think “scandal” but by Nixon standards, Watergate is just a little icing on the cake.

The premise behind the Benghazi scandal is that the President failed to label the attack an “act of terror,” and misled Americans about the attack; both for political reasons. Some Conservatives are even calling for impeachment. Aside from the dubious nature of the allegations, it may be worth asking the right to examine the plank lodged in its eye before inventing a speck in the President’s.

Consider, for instance, Nixon sabotaging the Paris Peace Accords for blatantly political reasons. Christopher Hitchens wrote in his compact but explosive expose on Kissinger, The Trials of Henry Kissinger,

In the fall of 1968, Richard Nixon and some of his emissaries and underlings set out to sabotage the Paris peace negotiations on Vietnam. The means they chose were simple: they privately assured the South Vietnamese military rulers that an incoming Republican regime would offer them a better deal than would a Democratic one. In this way, they undercut both the talks themselves and the electoral strategy of Vice President Hubert Humphrey. The tactic “worked,” in that the South Vietnamese junta withdrew from the talks on the eve of the election, thereby destroying the peace initiative on which the Democrats had based their campaign.

The recently released Johnson tapes confirm that not only is Nixon partially responsible for the tens of thousands of Americans and Vietnamese who needlessly died after the talks fell apart, but Johnson was aware of the “treason.”

And what about the Iran-Contra affair? Even today, many Americans may be surprised at just what the Reagan administration did: high level officials secretly sold weapons to Iran through Israel (to get hostages freed for political purposes) and then used the money to illegally fund the Contras in Nicaragua. After tens of thousands of innocent civilians were maimed by the guerrilla forces that were fighting against the elected government of Nicaragua, the Nicaraguans took the U.S. to the World Court and won. The court found the U.S. guilty of “hereof which involve the use of force, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to use force against another State.” Reagan ignored the decision and the U.S. used its position on the Security Council to block any enforcement of the judgement.

But, what about the IRS targeting Tea Party groups? Well, a little paperwork certainly is annoying, but it’s hardly the worst thing the U.S. government has done to political enemies. Consider COINTELPRO, the FBI’s program to disrupt domestic political organizations. The program included reporting members of the Socialist Workers Party to their bosses, a “war” against to discredit Rev. King Jr. and after spending years subverting the Black Panthers, evenually assassinating a Black Panther leader, Fred Hampton. Read that twice.

We could discuss Ford giving Suharto a go ahead to invade East Timor, Operation MONGOOSE, the recent discovery that the U.S. killed enemies of the Pakistani government for access to airspace, but the larger point remains: the Benghazi “scandal” is a product of the right-wing echo chamber, not legitimate outrage over truly nefarious actions. Those who follow hyperlinks will note with despair that most of my sources come from foreign media, where most of the reporting on real scandals occurs. The American media (with the exception of outlets like Antiwar.com free of commercial censorship) will largely report on minor scandals, leaving the good stuff to be buried decades in the future. Even today, most Americans know of Watergate, but few know of COINTELPRO and the Paris Accords.

Sean McElwee has previously written for The Day and The Norwich Bulletin and on WashingtonMonthly.com and Reason.com. He is a writer for The Moderate Voice. Visit his blog at http://www.seanamcelwee.com.

Israel’s official silence following its airstrikes on weapons depots in Syria earlier this month fueled accusations in every direction. Damascus condemned it as an attempt to destroy the regime, Tehran said the real targets were Iran and Hezbollah, analysts in the U.S. said it was a demonstration of “credibility.”

But now a Syrian rebel commander has a different take: “The assault was in support of Assad.”

Abdul Qader Saleh, commander of the Al-Tawhid Brigade, told the Turkish news agency Cihan that Bashar Assad’s regime has in fact already been defeated and that Iran and Hezbollah , with Israel’s backing, are preventing his downfall.

“The Syrian opposition was on the verge of taking over Assad’s weapons caches and that is why Israel attacked Syria,” Saleh claimed.

“There were several senior Syrian officers who were planning to defect and hand over weapons to the opposition. Israel bombed those caches for fear they would fall to the hands of the opposition. They contained air defense systems and heavy artillery. The assault was in support of Assad.”

This clashes with analyses that claim Israel aims to overthrow Assad in order to get to Iran. The claim is about as credible as the rest of the assertions of Israel’s intent. But Saleh’s accusation isn’t out of nowhere.

Efraim Halevy, who served as chief of the Mossad from 1998 to 2002, argued the same in a piece in Foreign Affairs:

Israel’s most significant strategic goal with respect to Syria has always been a stable peace, and that is not something that the current civil war has changed. Israel will intervene in Syria when it deems it necessary; last week’s attacks testify to that resolve. But it is no accident that those strikes were focused solely on the destruction of weapons depots, and that Israel has given no indication of wanting to intervene any further. Jerusalem, ultimately, has little interest in actively hastening the fall of Bashar al-Assad.

Israel knows one important thing about the Assads: for the past 40 years, they have managed to preserve some form of calm along the border.

If you compare the threat assessment Israel must be doing on Assad with the threat assessment Israel must be doing on Sunni rebel extremists possibly coming to power in Syria, clearly the latter is significantly worse. Israeli foreign policy is menacing and criminal, but it isn’t stupid.

Not only does Israel in all likelihood see Assad as less threatening than al-Qaeda-affiliated militias, but there is also an argument out there, made yesterday by Thanassis Cambanis in Foreign Policy, that Iran’s backing of Assad is draining the Islamic Republic’s resources and reputation in the region. Israeli policymakers may be viewing that favorably.