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Worse Than The AP Phone Scandal


Before Attorney General Eric Holder oversaw a Justice Department that secretly seized AP journalists’ phone records, he was guilty of something even worse, and closely related to the AP scandal. He argued a little-known case before the Supreme Court called Holder v. Humanitarian Law Project, which found that speech (and other forms of nonviolent advocacy) could be construed as material support for terrorist organizations. The case involved a U.S.-based non-profit organization, the Humanitarian Law Project, which, according to its website, is “dedicated to protecting human rights and promoting the peaceful resolution of conflict by using established international human rights laws and humanitarian law.” It also enjoys a consultive status at the UN; so, in other words, hardly a radical organization.

The Humanitarian Law Project advised groups designated by the Secretary of State as “terror organizations” to enter into peace negotiations and the UN process. Holder argued that such advice was the same as material support for terrorist organizations. Elena Kagan (at the time Obama’s Solicitor General appointee) formally assisted Holder in his argument. Holder and Kagan won the case. Shortly thereafter, Obama promoted her to Supreme Court Justice. Back when he was a Senator, Obama wrote, “There is one way, over the long haul, to guarantee the appointment of judges that are sensitive to issues of social justice, and that is to win the right to appoint them by recapturing the presidency”. To the layperson, social justice and civil liberties would seem to be related; but Harvard-educated constitutional law scholars know better.
The High Court’s decision in favor of the Obama administration prompted criticism from President Jimmy Carter:

“We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The ‘material support law’ – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.”

Noam Chomsky has described Holder v. Humanitarian Law as “the first major attack on freedom of speech in the United States since the notorious Smith Act back around 1940.” I emailed him, asking why things like Obama’s NDAA are getting so much more attention than far more harmful Holder v. Humanitarian Law. Chomsky wrote back, “I agree with you that this is far more important than NDAA, and have been arguing that for some time, with no effect.”

Just as the Obama administration stifled speech in Holder v. Humanitarian Law, they did the same thing when they targeted AP journalists. Quite likely, the journalist’s great sin was exposing the story of a CIA operation in Yemen. We don’t know why the administration needs to know the identity of the journalist responsible for the story, because they won’t say. However, Holder assures us that “This was a very serious—a very serious leak, and a very, very serious leak.”

Very well put, Holder.

Given Obama’s enthusiasm for prosecuting whistleblowers, one might be led to think that he’s opposed to leaks. Not so, as evidenced by Obama’s leak of his “kill list” to the Times for political gain—among other intentional leaks. The “kill list” represented a top-secret leak, unlike the lower security clearance level of so many leaks that the administration has prosecuted with alacrity. The effect of Obama’s leak prosecutions, coupled with his hypocritical employment of leaks, is to concentrate power in his own hands. (History shows how well it turns out when charismatic leaders are permitted to consolidate power.) As constitutional and civil rights litigator Glenn Greenwald’s careful analysis of the topic has argued,

“Their unprecedented attacks on whistleblowers ensures that only the White House but nobody else can disclose classified information to the public, which is another way of saying that they seek to seize the ultimate propaganda model whereby the president and he alone controls the flow of information to the public. That’s what their very selective and self-serving war on leaks achieves.”

By use of the term ‘propaganda model,’ Greenwald is probably referring to Chomsky and Herman’s landmark book, Manufacturing Consent. The book demonstrated empirically that the mainstream media are biased in the favor of elite interests, largely because the information it disseminates is subject to five different filters (things like corporate ownership). Obama is trying to introduce a sixth filter, namely himself. Simply put, Obama is attempting to acquire a monopoly on leaks—a chilling prospect.

The White House Press Corps is a well-groomed, attentive bunch that seems better suited to an iPhone press conference than sparring with the President’s press secretary. Yet the AP phone scandal was enough to get Press Corps members to roll up their well-tailored sleeves and, as in one heated exchange with Press Secretary Jay Carney, ask why “this administration in the last four years has prosecuted twice as many leakers as every previous administration combined.”

Sure, delivering a critique as belated as this is a bit like a puppy baring its teeth. But puppies turn into dogs very quickly, and the establishment media are nothing if not pack animals. Like the Press Corps, virtually all of the establishment press, from the Washington Post to the New York Times (and of course the Associated Press) are bitterly condemning the administration’s seizure of AP phone records. This is strikingly different from their usual complicity with presidential administrations in exercising selective attention to atrocities of official enemies (e.g. Syria, Iran, North Korea) and selective ignorance to those of our official friends (e.g. Israel, NATO).

The fact that the White House is now offering to reintroduce a press shield law shows how frightened they are. As with any negotiation, one offers as little as possible, in anticipation of counteroffers. That they’re leading with a press shield law is encouraging. Now would be the time to make demands, like a legislative repeal of Holder v. Humanitarian Law.

Ken Klippenstein lives in Madison, Wisconsin, where he edits the left issues website He can be reached at

Ken Klippenstein is an American journalist who can be reached on Twitter @kenklippenstein or by email:

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