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The Justice Department v. the Fourth Estate


On Tuesday The New York Times revealed that the Justice Department had seized without notice caches of Associated Press phone records. Not simply work phone logs, but home and mobile phone records of A.P. journalists as well, from the agency’s bureaus in New York, Washington, and Hartford, Connecticut, and the House of Representatives itself. How kind of them to finally break the news to the A.P. We don’t exactly when the DOJ seized the records. Initially, their response to that query was a limp, “sometime this year,” according to the Times. Later in the day, Attorney General Eric Holder got marginally more specific, conceding the records were taken in April and May. We may not know just when the AP’s private audio correspondence was taken, but we know why.

Last June, AG Holder launched two investigations to discover the sources of two leaked stories: one, information on the Central Intelligence Agency’s foiling of a Yemeni bomb plot, broken by an A.P. journalist; and second, the Stuxnet cyber-attacks on Iran, broken by the Times. It’s hard to imagine Holder’s actions as anything other than an extension of President Obama’s nationwide dragnet on whistleblowers, or as the Commander in Chief might think of them, snitches. Six federal officials have been indicted for leaks thus far under Obama.

Notable among Obama’s domestic targets is soldier Bradley Manning, whose release of files to WikiLeaks may conceivably have led to the Iraqi rejection of the American Status of Forces Agreement (SOFA) that then Secretary of Defense Leon Panetta was attempting to ram through Baghdad’s puppet parliament. A mightily armed, billion-dollar embassy at the heart of the country evidently does little to assuage American alarm over precious Arab oil possibly falling into the wrong hands—hence the persistent request to keep tens of thousands of troops in-country on a semi-permanent basis, legally immune from prosecution. If Manning’s actions help derail this imperial arm-twisting, should he not be lauded among both Iraqis and liberty loving Americans? Perhaps, but instead Manning has enjoyed the dank and dreary half-life of solitary confinement—for the better of two years. Such is Obama’s regard for truthdiggers. Like a Mafia don ordering hits over his nightly repast, Obama too is anxious to seal the vaults of empire from pesky gadflies. What iniquities may lurk behind those sealed doors—which are ironically less secure than Manning’s own concrete block?

The Times then notes, “Under normal circumstances, regulations call for notice and negotiations, giving the news organization a chance to challenge the subpoena in court.” That’s right. The Justice Department is supposedly beholden to the law, which stipulates it must subpoena records—like ordinary mortals—and then only as a last resort. A spokesman for the U.S. attorney of the District of Columbia (notice how far down the tree we’ve tumbled from the Oval Office; Holder was forced into the spotlight later on Tuesday) said that the DOJ must notify the affronted party in advance unless—and here comes the clichéd caveat that renders meaningless everything that goes before—unless that notification jeopardizes the investigation, or as the spokesman put it, “poses a substantial threat” to the inquiry. Note here that the threat is not to national security, but to the investigation into the leaking of information related to an investigation of a potential threat to national security. Rather quickly, the vocabulary of fear is extended into the abstract, where complicity soon becomes the subject of supposition.

What The Times fails to notice, although it might when it discovers half its journalists have been wiretapped, is that “normal circumstances” have been banished to the netherworld (where lurk our naïve, pre-McCarthy ancestors). The war on terror has transformed the entire globe into a potential flashpoint or field of fire. Most notably the online world. The offline world is already swarming with Homeland Security agents, baiting Arabs into basements to plot crimes against the state. The DHS is stockpiling weapons at a frantic pace, clearly anticipating a domestic Armageddon. But it’s the online world from which we have the most to fear. Far easier to craft the appearance of complicity from a few transaction records and cell transcripts than by suckering unwitting immigrants into bomb-making workshops.

Obama’s contempt for the rule of law is now legendary. Already his wake is strewn with the tatters of discarded precedent—due process, habeas corpus, assassination (which his former heroes Lincoln and Reagan outlawed in writing), not to mention the shredding of fragile international conventions on torture and acts of aggression.

Think of the consequences of this latest crass inversion of freedom. Will journalists now think twice before breaking a controversial story that casts the administration in a dubious light? Will they think again before interviewing a source that might have contacts in terrorist cells? How easily, with phone records in hand, could the DOJ assemble a slapdash case against an official or a journalist for having delivered, via the media, “material support” to the enemy, who, as mentioned before, is everywhere. The White House definition of the enemy now assumes the character of the ancient definition of God, “a circle whose center is everywhere and circumference nowhere.” There are simply no boundaries left for innocents to cross. We are suspect by the mere fact of our being. This is a crucial point of Darkness at Noon, Arthur Koestler’s magisterial depiction of the cannibalistic nature of the Communist purges. The authoritarian state always internalizes its conception of evil—it looks within for targets, those it suspects of undermining its grip on power. And if that power is wantonly held, as it invariably is, the state becomes paranoid and suspects everyone. So, as Koestler’s Rubashov notes time and again, one’s actual innocence is of little regard to the state. What matters is sustaining the national narrative and silencing dissenters (those who would offer an alternative account). Which is precisely the point of these DOJ investigations. Obama is anxious to put the proverbial kibosh on leaks, constitutional hurdles notwithstanding.

And all of it—from indefinite detention to the destruction of whistleblowers—is sanctified under the banner of keeping you safe. Your security is paramount, thus your liberty is required. We have dispensed with finite campaigns such as actual and cold wars, where the enemy is a state, and opted for a campaign far more catholic in its embrace, a campaign against a tactic—war without end. It is this narrative, so tirelessly rehearsed yet so tiresome and trite, that still needs to be relentlessly discredited. Until it is, normal circumstances will remain a legal fiction, as removed from reality as so many of the conjured threats themselves.

Jason Hirthler is a writer, strategist, and 17-year veteran of the communications industry. He lives and works in New York City and can be reached at

Jason Hirthler is a veteran of the communications industry and author of The Sins of Empire: Unmasking American Imperialism. He lives in New York City and can be reached at

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