Why Eric Holder's Excuse for Spying on Reporters Isn't Enough

If the enemy already benefited from a serious leak, why can't he tell us the details that they already know?

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Eric Holder's tenure as Attorney General is beset with failures, even if you judge him by his own goals. The fact that his Justice Department spied on AP reporters, snooping into their telephone calls, appears to be the latest betrayal of the ethos he championed prior to his time in government.

But Holder would have us believe that, contrary to the claims of journalists and civil libertarians, the Justice Department did nothing improper. In his telling, spying on journalists was necessary because there was a leak that compromised national security in a particularly serious way. Charlie Savage and Scott Shane adeptly capture the dispute in their New York Times writeup:

WASHINGTON -- Attorney General Eric H. Holder Jr. on Tuesday defended the Justice Department's sweeping seizure of telephone records of Associated Press journalists, describing the article by The A.P. that prompted a criminal investigation as among "the top two or three most serious leaks that I've ever seen" in a 35-year career. "It put the American people at risk, and that is not hyperbole," he said in an apparent reference to an article on May 7, 2012, that disclosed the foiling of a terrorist plot by Al Qaeda's branch in Yemen to bomb an airliner. "And trying to determine who was responsible for that, I think, required very aggressive action."

In a statement in response, The A.P.'s president and chief executive, Gary Pruitt, disputed that the publication of the article endangered security. "We held that story until the government assured us that the national security concerns had passed," he said. "Indeed, the White House was preparing to publicly announce that the bomb plot had been foiled." Mr. Pruitt said the article was important in part because it refuted White House claims that there had been no Qaeda plots around the first anniversary of the killing of Osama bin Laden.

The Obama Administration frequently responds to criticism of its national security policy by invoking national security threats that they conveniently can't discuss openly or in particular detail.

Perhaps they'd sometimes be vindicated if we knew the whole truth.

But I am deeply skeptical in this instance, and not only because I doubt that the president of the Associated Press would brazenly lie about what his organization was told by the Obama White House.

Here's how I see it. Holder's claim isn't that national security could've been damaged had our enemy seen the contents of leaked information that the Associated Press obtained. Rather, Holder insists that the American people were put at risk. In his telling, serious damage was done, hence the imperative to identify the "responsible" party with a secretive, aggressive investigation.

But wait a minute.

If an Associated Press article revealed some choice bit of information to the enemy that empowered it and hurt Americans -- if that damage was, in fact, done -- why not tell us the particulars?

After all, if the enemy already got information that endangered American national security, they already know about it, by definition. Holder's explanation would seem to suggest that he could tell us the damaging information that passed to the enemy, and why it was damaging, without telling the enemy anything they don't already know. He is nevertheless being vague and noncommittal.

Why is that?

Perhaps there's an innocent explanation. If so, he should offer it. Absent any explanation, there is probable cause for suspicion (not that Holder would demand as high a standard as that!). When one guy is saying, to quote the A.P. chief directly, "We held that story until the government assured us that the national security concerns had passed," and the other guy is saying that's wrong, but can't explain why in any detail, the former has the more credible account.

Orin Kerr of The Volokh Conspiracy gamely tries to come up with an alternative scenario that would make Holder's position seem more reasonable -- you can read it for yourself here -- and while we should remain open to a scenario like the one he sketches, it's hard to see why Holder couldn't sketch mitigating details for us himself. Absent any information, we're left to judge his plea to "trust us" in the context of the Obama Administration's general credibility on press issues.

The New York Times characterizes that context as follows: "The Obama administration has indicted six current and former officials under the Espionage Act, which had previously been used only three times since it was enacted in 1917. One, a former C.I.A. officer, pleaded guilty under another law for revealing the name of an agent who participated in the torture of a terrorist suspect. Meanwhile, President Obama decided not to investigate, much less prosecute, anyone who actually did the torturing." In other words, their judgment can't be trusted.