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About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply...  (More)

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Serve AND Protect?

Uploaded: May 22, 2013
That popular slogan reflects what citizens expect from their government: protection from harm and service to the common good. It appears on crests and cop cars across the land. But what happens when those two bedrock policies collide? In the deadly serious scandal of a blather-filled week, the Department of Justice badly missed the mark in resolving that conflict. The damage they caused will endure for years.

The facts are that DOJ agents seized office and home phone records from reporters for the Associated Press, in search of information leaks from officials to those scribes about an ongoing anti-terrorist operation in Yemen. The seizure was conducted, without notice to the reporters or the AP, by officials of an Administration that promised transparency; it has too-often invoked a 'trust us' excuse for its opacity.

The tension, of course, involves the government's duty to 'protect,' including the conduct of clandestine operations in the name of Homeland Security. And to 'serve,' in terms of ensuring the rights of the people it governs, most notably the First Amendment freedoms of speech and press. In its operations – Especially those designed to protect, government can't lose sight of its role as servant of a free people. The problem is that the government's 'leak' is a reporter's 'source' – and a free press has been acknowledged since the inception as a fundamental foundation of freedom against government over-reaching. This incident was wrong in so many ways -- let me recount a few.

1 -- No notice. Had the reporters or the AP been notified of the DOJ order, they'd have surely taken the opportunity to challenge it in federal court. This is the kind of issue that reporters will go to jail-for, and consider it a badge of honor to do so. That independent review would have balanced the conflicting interests to resolve the press freedom issue. Ironically, in the absence of a federal reporters' shield law, that review would very likely have gone DOJ's way, within limitations; it is crucial that such a case be heard.

2 -- It violated the AG's own internal Guidelines for these cases. The AG's own Guidelines call for them to seek judicial review in cases like this one, but they didn't. All we know, so far, about their rationale is AG Mr. Holder's claim, echoing the court room in A Few Good Men, that this leak was "serious" – how serious? "very very serious." The problem, of course, being that such a self-justifying statement comes from the very guy who sacrificed his credibility on the issue by allowing the document 'raid' in the first place. That's not the 'serve' to be expected from the government.

3 -- It was way over-broad. The Feds seized two full months of records from some 20 reporters. That's no precision strike, it's a fishing expedition. And it's not fly-fishing, either – it's drift-net trawling. Even assuming they got their prey, what of the bi-catch? What other information did they snag that they should not have?

4 -- It will "chill" new sources from coming forward. Sources reveal themselves to reporters, often at great personal risk, with all kinds of info, for all kinds of reasons. This dragnet-style seizure will "chill" the inclination of new sources to come forward. Normally, reporters can assure them of some level of anonymity – many have gone to jail to keep their promises – but not id they don't even know what's been seized until after-the-fact. We don't know what government mal-feasance will escape disclosure because of this incident, but we can be assured that there will be some.

5 -- It was unnecessary. The AP had already agreed to hold its Yemen-related stories until some later date. That the Feds went ahead despite those assurances suggests that their focus was not the leak, but the leaker. The leak had been staunched – it's apparent that they were really looking for evidence to build a case against the source. If that's the case, it could have/should have waited, and been narrowly targeted.

6 -- It was bad politics. As above, the Constitutional Law Prof-in-Chief had campaigned repeatedly on a 'transparency' platform. This incident, and others of similar direction, gives the lie to that pledge. Worse, it lends undeserved credence to the Mad tin-foil Hatters, whose suspicions of dark conspiracies now seem less improbable. And worst, it embroils the boss in yet-another paralyzing controversy that will be gleefully milked by his opponents – who need much less of an excuse that this to hog-tie the Congress. To the extent that the Administration must play defense, they can't promote the agenda they we elected to pursue.

7 -- It was bad management. There should be excellent checks built-into the system to prevent or short-circuit this kind of action. It's that important. I recall an interview with the then-staff-lawyer at J&J who fielded the first Tylenol contamination reports from the field. The recall was immediate and unequivocal. Asked if he had any doubts at the time, he replied "no – we practice this. The patient always comes first." DOJ staffers should be at least as well-trained to respond to the service vs. protection issue, and to come down on the side of the First Amendment, immediately and unequivocally.

Finally, for me at least, there is something ironic about this Administration's fixation on leaks. Every Administration uses them for its own purposes, to massage the public discourse. So it's not even leaks in principle, but leaks we don't like that prompted this debacle.

Some protection. Some service. Feel free to complete the Top Ten list I've started here.
What is it worth to you?


Posted by Rick Pshaw, a resident of Danville,
on May 23, 2013 at 9:32 am

You are going to come around yet, Tom.

Posted by spcwt, a resident of Danville,
on May 23, 2013 at 10:22 am

Did Tom really write this article? Or is Allen Funt going to jump out and say, ?Smile, you?re on Candid Camera??

Posted by Tom Cushing, a resident of Alamo,
on May 23, 2013 at 10:27 am

Hey fellas, I calls like I sees 'em: Web Link

Posted by Darrin, a resident of Blackhawk,
on May 23, 2013 at 11:29 am

Oh stop now, Tom....we all know it is Bush's fault and most likely a trap set by those rascally Republicans.

Posted by C. R. Mudgeon, a resident of Danville,
on May 23, 2013 at 11:42 am

Having lived for 30 years in the Chicago area, the only surprise in this story is how long it took for people to start waking up to the reality that the President's core group of advisors have a long history of abusing political power. The "Chicago mob" of present and past advisors, chiefs of staff, etc. (including David Axelrod, Bill Dailey, Rahm Emmanuel, Valerie Jarrett) have always had an "end justifies the means" mentality, and that laws and legal limitations are for others, but not them. I wouldn't buy a car from any of them... Holder's not one of the Chicago core group, being more of a Clinton guy, originally. But he's of a similar mindset, and in any case he does what he's told.

I also find it a bit amusing that it took the AP "leak investigation" story to (finally) disabuse many reporters from their "Obama can do no wrong" love affair, whereas Benghazi and the IRS abuse were basically ignored and/or downplayed for quite a while. But once the AP story "broke the ice", reporters are starting to remember a few things about investigative journalism. Better late than never!

Posted by JT, a resident of Danville,
on May 23, 2013 at 12:31 pm

You need to brush up on the facts of this case. Some Benedict Arnold Traitor leaked a story to the AP that daylighted one of the most valuable moles ever in the history of the United States. The mole was placed in the highest levels of Al Quaida in Yemen!!!!!!!!!

How did the DOJ respond. Look up the facts. After months of detective work that went nowhere, they finally took the next step of requesting phone records. Have you not followed the story close enough to know this. Maybe the reporter should voluntarily out their source. Or maybe the source of the leak should voluntarily turn themselves in. Why won't they, because they know what they did was wrong, and they would be branded as traitors!!!!

All you guys can do is focus on the AP side of this. Tough crappola, reporters should know that if they are dealing with traitorous ilk within the government, then they may suffer the consequences.

Have you ever considered that the leak inside the government might be someone that supports Al Qaeda? And this leak was the best way to keep them off their trail. And since it sounds like you are a blinded by the right Republican, did you ever consider that this leak might have come from your "foreign" born "Islamist" President, and perhaps this could be your trump card for impeachment. Losers, if this were Bush you would be singing his praises.

Posted by Conservator, a resident of Danville,
on May 23, 2013 at 3:08 pm


While I typically align to the the thoughts and perspectives that you offer herein, I do believe you to be quite intuitive and astute. As you rattled off all of the President Obama's closest advisers, it brought back found memories of the late (and great) George Carlin. If you recall as I do, he was able to fill entire records with material taken directly from the adventures of one Attorney General Edwin Meese and sidekicks Poindexter & North. As I also recall, that is the era of Reaganism that coined the colloquial euphemism 'shredding parties'. Just a dozen years earlier then this, we had a true CA native in the White House assisting the IRS compile it audit list for a couple of years.

I think that one has to agree that we find 'good' in what we want and 'bad' in what we hope with every administration which brings us back to Carlin. In one of his truly great moments, he left us with

"The real reason that we can?t have the Ten Commandments in a courthouse: You cannot post ?Thou shalt not steal,? ?Thou shalt not commit adultery,? and ?Thou shalt not lie? in a building full of lawyers, judges, and politicians. It creates a hostile work environment." George Carlin (1937 - 2008).

Posted by Tom Cushing, a resident of Alamo,
on May 23, 2013 at 4:56 pm

@ JT: ?? you are a blinded-by-the-right Republican?? New around here? Here?s me, reading that passage for the first time: Web Link

@ CurM: I saw someone compliment you recently as ?not crazy? and I agree -- high praise on this forum. That said, those other two incidents do not belong in the same Hall of Infamy, at all. I think you can judge whether an ?occurrence? is a ?scandal? based on three factors: outcome, wrongdoing, and motivation of the pursuers.

In that matrix, the AP case scores high on all three: great, enduring damage; bafflingly poor judgment by DOJ; and when you?re a Dem and you?ve got Floyd Abrams jumping down your throat, you?re in trouble. 3/3. 6/3, if I could weight it.

Benghazi, OTOH, involved horrible loss-of-life consequences; serious mistakes without wrongdoing; and cynically political motives by The Persecution. 1-2/3. It doesn?t qualify.

The IRS matter involved pretty trivial consequences ? whether donor names (that ought to be revealed anyway) would not be, on the flimsy basis of purported 501c4 qualification. There was bureaucratic wrongdoing (I don?t think even the most rabid ?hatters believe Mr. Obama was complicit); and the motivations can be couched as appropriate, so far at least (contrast Benghazi). Maybe a gentleman?s 1.5/3?

I do not think they?re in the same league.

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