Obama's Enforcer (19 page)

Anther Justice Department investigation into a leak about North Korea, while not as damaging to America's intelligence gathering, shows the willingness of Holder to skirt and bend, if not break, federal law. This is also a case in which Holder gave “deceptive and misleading” testimony to Congress, a habit of his that has helped lead to his being the first attorney general in American history to be held in contempt by the House of Representatives.

On June 11, 2009, James Rosen, the chief Washington correspondent for Fox News, published a story about North Korea.
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Rosen reported that U.S. intelligence believed that North Korea would respond to a UN Security Council resolution condemning the country's nuclear and ballistic missile testing program in four different ways, including launching another missile. Rosen quoted an unnamed source but said he was withholding details “to avoid compromising sensitive overseas operations.”

Holder ordered the FBI to open an investigation that led to the indictment of Stephen Jin-Woo Kim, a Lawrence Livermore National Laboratory employee who was on a detail to the State Department, and who eventually pleaded guilty to disclosing national defense information. Kim was one of ninety-six individuals who had accessed the relevant classified intelligence report on North Korea on June 11, the day the story came out, but the only one who had spoken with Rosen that same day by telephone, as well as having prior telephone calls and email exchanges with Rosen. The FBI had found all of this evidence by seizing Kim's official State Department telephone and email records.

The FBI also believed that Kim met with Rosen face-to-face on June 11. This was based on the electronic system that tracked the State Department badges of both Kim and Rosen and showed them leaving and returning to the State Department building at 2201 C Street, NW in Washington, D.C., at almost the same time.
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But the FBI also had emails between Kim and Rosen because the agency had secretly obtained a search warrant in May 2010 for Rosen's personal email account. The Privacy Protection Act bans the government from obtaining a search warrant for a reporter unless “there is probable cause to believe” the reporter is committing a crime, so the affidavit filed in the Justice Department's warrant application claimed that “there is probable cause to believe that the Reporter [Rosen] has committed a violation” of the Espionage Act “at the very least, either as an aider, abettor and/or co-conspirator of Mr. Kim.”
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The only factual basis the FBI revealed for that assertion was that Rosen flattered Kim, “exploited” his vanity, and was very “persistent” in seeking information about the North Korean situation, actions all reporters do routinely when they try to convince a source to provide them with information.

The search warrant application, which was personally reviewed and approved by Eric Holder under applicable DOJ policy, also requested that the federal court issue an order preventing the email provider from notifying Rosen of the search warrant. It alleged that disclosure would endanger the life and safety of an individual, potentially cause flight from prosecution, destruction and tampering of evidence, intimidation of potential witnesses, or otherwise seriously jeopardize the investigation. Since Rosen could not destroy or tamper with emails on his email provider's server and the FBI had already seized all of Kim's telephone and email records, the claims made by the agent were clearly false. And no one can seriously argue that any of the other claims—such as that Rosen would flee—would apply, either.

Two separate judges refused to grant the Justice Department a warrant, with each separately concluding that DOJ “was required to notify Mr. Rosen of the search warrant.”
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But Justice appealed the decision and convinced the chief judge of the Federal District Court for the District of Columbia, Royce C. Lamberth, to issue the warrant. The Justice Department didn't move to unseal the search warrant records until November 7, 2011. However, due to a series of errors by the court clerk, the search warrant was not unsealed until May 16, 2013, when the clerk started receiving media inquiries as the story broke.
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The day before, however, on May 15, Eric Holder testified before the House Judiciary Committee and was specifically questioned about the Justice Department's leak investigations. He made no mention whatsoever of the warrant that had been issued for Rosen's emails. When Representative Hank Johnson (D-GA) asked Holder about the seizure of the AP's phone records and possible prosecution of the press for publishing stories based on classified information, Holder responded:

With regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved, heard of, or would think would be a wise policy. In fact my view is quite the opposite. . . . The focus should be on those people who break their oaths and put the American people at risk, not reporters who gather this information. That should not be the focus of these investigations.
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This testimony was not true. Holder claimed that prosecuting the press was “not something that [he had] ever been involved, heard of, or [thought] would be a wise policy” and yet he had
personally approved the application for a search warrant
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that claimed Fox reporter James Rosen was a co-conspirator or aider and abettor of criminal activity, which would make Rosen just as guilty of violating the Espionage Act as the government official who disclosed the classified material. If Holder did not believe this to be true, and if he had no intention of ever prosecuting Rosen, it was unethical for him to approve such a false claim based on a false premise in a sworn affidavit that was filed with the court.

When the House Judiciary Committee learned about the Rosen investigation by Justice after Holder's hearing, it tried to question him in a letter about “the obvious clash between his testimony and the truth.” But Holder refused to respond. Only after weeks of delay did Holder finally send a response on June 19, 2013, that “failed to answer any of the Committee's questions.”
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In fact, Holder admitted in his letter that even though the Justice Department had had no intent to prosecute Rosen, the department claimed he had committed a crime precisely because such a claim was necessary “in order to proceed under the Privacy Protection Act.” His response did not “ameliorate” the committee's view that his testimony was “deceptive and misleading” and it took no comfort in the claim made by Holder that the department “never intended to prosecute Mr. Rosen when it labeled him a criminal suspect.”

In fact, as the committee pointed out, the legislative history of the Privacy Protection Act makes it clear it was intended to prevent the government from searching the files of journalists for evidence against third parties. Holder's view, that the government can search the files of a journalist as long as the government makes a pretextual showing that the journalist is involved in criminal activity, “runs exactly counter to the purpose of the PPA.”
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There is no question that leaking classified information is a serious violation of the law that can endanger the national security of the country and the lives and safety of intelligence agents and the general public. But going after government officials is a different prospect than going after journalists engaged in First Amendment activity. The government protects classified material through strict internal controls, limiting access, and prosecuting officials who leak the information—not prosecuting the reporters who publish the leaks. Holder's approval of a secret investigation of James Rosen is exactly the kind of abusive government action that will have a deterrent effect on reporters and particularly their sources. It is also completely unacceptable to classify reporters doing their jobs as criminals as Holder did in the FBI affidavit.

As Michael Clemente, an executive vice president at Fox News, said, naming a reporter as “a criminal coconspirator for simply doing his job as a reporter” is “downright chilling.”
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First Amendment lawyer Charles Tobin added that “search warrants like these have a severe chilling effect on the free flow of important information to the public.”
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The administration obviously realized it had a problem even with the generally liberal press, which has treated Barack Obama and Eric Holder with kid gloves during his presidency, after news about the AP and Rosen investigations came out. Holder held seven meetings with representatives of about thirty very concerned news organizations, after which he announced a “new” set of guidelines that would supposedly restrict Justice Department investigations into leaks involving reporters.
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But the guidelines still allow prosecutors to obtain a search warrant for a journalist's phone and email records if he is the target of a criminal investigation—which is exactly how Holder improperly convinced a federal judge to issue a warrant against Rosen before these “new” guidelines. The guidelines also require news organizations to be notified of such a warrant unless the attorney general believes it would harm the leak investigation—which was also exactly what the law was prior to these “new” guidelines. Yet Justice failed to notify the AP and in fact asked the judge to
delay
notification. These “new” guidelines were obviously just face-saving propaganda created by the Justice Department PR shop that were intended to satisfy the media that Holder was taking steps to assuage their concerns even though they made no significant changes in Justice policy and helped mask Holder's violation of the legal rights of the AP and James Rosen as well as prior internal DOJ guidelines.
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But while the Justice Department aggressively has gone after accused low-level leakers of classified information, it has ignored the leaks of classified and sensitive information by the White House and senior administration officials. Senator Dianne Feinstein (D-CA), the chairwoman of the Senate Intelligence Committee, herself said that the White House has been behind recent national security leaks and that President Obama must understand “that some of this is coming from their ranks.”
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At the same time that his administration threatened to prosecute a former member of SEAL Team Six, Matt Bissonnette, for his firsthand account of the May 2011 raid that killed Osama bin Laden, President Obama's Justice Department ignored what is probably the most blatant and outrageous leak directly engineered by the Obama White House—detailed classified information about the mission by Team Six that found and killed Osama bin Laden. In fact, the reason we know it was SEAL Team Six is that Vice President Joe Biden identified them publicly at a dinner of the Atlantic Council at the Ritz-Carlton Hotel in Washington, D.C., on May 3, 2011.
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This meant that every member of Al Qaeda knew which American military unit to target and where to look for them, since they are based in Norfolk, Virginia. In fact, Karen Vaughn, the mother of one slain member of SEAL Team Six, said she was called by her son after Biden's leak to tell her to delete all information about their family on “social media, Facebook and Twitter.” She said that she “never heard [her son] that afraid in his life. He told me: ‘Mom, we're picking up chatter. We're not safe. You're not safe. Delete everything.' ”
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It was only three months after bin Laden's death that fifteen members of SEAL Team Six were among the thirty-eight service members killed in an attack on a Chinook helicopter in Afghanistan by Taliban fighters using rocket-propelled grenades, and who were “waiting on three sides for the aircraft as it approached. The Chinook was a sitting duck as it hovered in the sky. The evidence is overwhelming and disturbing: SEAL Team 6 members were ambushed.”
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The White House not only required the CIA and the Pentagon to give special briefings to the makers of the movie
Zero Dark Thirty
, screenwriter Mark Boal and director Kathryn Bigelow, but according to documents obtained by Judicial Watch through a lawsuit and a Freedom of Information Act request, even revealed the classified name of the identity of a “planner, SEAL Team 6 Operator and Commander.”
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Classified information and “scads of details” were released by the White House and the Pentagon to the filmmakers and the public about the bin Laden mission.
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In fact, while the administration was leaking this information, the Justice Department was in court arguing against attempts by organizations like Judicial Watch to obtain information about the bin Laden raid under the Freedom of Information Act. Even liberal columnist and Obama supporter Maureen Dowd admitted that this leaking to the filmmakers was done so it would “give a home-stretch boost” to the president's tough reelection campaign.
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In other words, “at exactly the same time that it was telling a court that the mission is too secret to permit such disclosure, the White House launched a coordinated campaign of selective media leaking that had only one purpose: to glorify the president.”
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In essence, the “Obama administration strategically leaked details of the bin Laden raid for political advantage,” says one criminal defense lawyer who represents military clients.
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He adds that “using strategic leaks for political gain, while complaining that a witness to events wrote about what he personally saw and did, really is the height of hypocrisy.” Those officially sanctioned leaks led directly to the imprisonment of the Pakistani doctor who helped locate bin Laden for U.S. forces.

Then–Secretary of Defense Robert Gates was so concerned about these leaks coming out of the White House that he went to meet with Tom Donilon, Obama's national security adviser. According to David Sanger of the
New York Times
, Gates told Donilon that he had “a new strategic communications approach to recommend.” When Donilon asked what it was, the defense secretary angrily responded: “Shut the fuck up.”
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