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Aileen Cannon Is Stiff-Arming the Press

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I’m going to write up what really happened yesterday — as predicted, virtually all outlets I’ve seen simply quoted what Aileen Cannon claimed she had done, rather than describing what she had actually done.

Before I do that, I want to note that Judge Cannon is stiff-arming the same press that is reporting so credulously on her interventions.

Back on August 31, the press coalition that does such things moved to intervene in the case. Most of it was the same boilerplate the coalition uses for all such motions, but they did cite both sides in the matter calling for transparency.

Former President Trump himself has called for greater transparency. See, e.g., ECF No. 1, at pp. 2-3 (noting personal desire for more openness). The Government has stated likewise. See, e.g., ECF No. 1, at pp. 9-10 (detailing Attorney General Merrick Garland’s statements on why the Government sought to unseal certain search warrant records); see also ECF No. 48, at p. 2 n.1 (noting that the Government is “prepared . . . to unseal the more detailed receipt”).

They described that the government did not oppose the motion and Trump took no position on it. They asked to be heard on the matter on September 1.

The next day, Judge Cannon released the detailed inventory the government had submitted (it has since submitted a slightly revised inventory, but didn’t address the press access.

After the government moved to unseal the privilege status report on September 8, the press coalition submitted their own request for unsealing.

Then, after two weeks had elapsed since their initial motion, the press coalition tried again. They pointed out that if anyone wanted to oppose their intervention, the two week deadline to do so had expired. And they noted that the privilege review status report still remained under seal.

The News Media further note that certain records remain under seal in this matter, namely those docketed at ECF No. 40. The News Media understand ECF No. 40 to contain the Government’s submission regarding its Privilege Review Team’s Notice of Status of the Filter Process. The Government filed a motion to unseal that document (less Exhibits A and B to that filing) on September 8, 2022. See ECF No. 71. The News Media filed a further motion to unseal that court record on September 9, 2022. See ECF No. 79.

But Judge Cannon has simply ignored those requests.

There’s an obvious reason she did so: In her September 5 order first appointing a Special Master, she made claims based on that sealed status report. The claims are not only probably false, but she effectively double counted the potentially privileged materials as both potentially privileged and personal. That was the means by which she found that Trump had a possessory interest in the items seized on August 8. So she likely can’t allow that status report to be unsealed, because if it were, her deceit would become evident.

Ironically (or perhaps cynically), Cannon cited the importance of the perception of fairness in that same ruling relying on the status report she won’t let the press see.

A commitment to the appearance of fairness is critical, now more than ever.

[snip]

As Plaintiff articulated at the hearing, the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness. See supra Discussion III–IV; see also In re Search Warrant Issued June 13, 2019, 942 F.3d at 182 (“[A]n award of injunctive relief in these circumstances supports the ‘strong public interest’ in the integrity of the judicial system.” (quoting United States v. Hasting, 461 U.S. 499, 527 (1983) (Brennan, J., concurring in part and dissenting in part))).

[snip]

“[E]fficient criminal investigations are certainly desirable,” In re Search Warrant Issued June 13, 2019, 942 F.3d at 181, but so too are countervailing considerations of fair process and public trust.

But she only maintains this perception by stiff-arming the press and hiding that status report.

Thus far, she has gotten away with it. Not only isn’t the press calling her out for stiff-arming them, but they continue to quote what she says rather than reporting on what she does.

Update, 10/4: After she ordered the status report unsealed, Judge Cannon granted the motion to intervene prospectively.

Further Implications of UndieBomb II Leaker Guilty Plea

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As you have likely heard by now, a former FBI agent has agreed to plead guilty to leaking material about the second underwear bomb attempt to reporters in May of 2012. Charlie Savage of the New York Times has the primary rundown:

A former Federal Bureau of Investigation agent has agreed to plead guilty to leaking classified information to The Associated Press about a foiled bomb plot in Yemen last year, the Justice Department announced on Monday. Federal investigators said they identified him after obtaining phone logs of Associated Press reporters.

The retired agent, a former bomb technician named Donald Sachtleben, has agreed to serve 43 months in prison, the Justice Department said. The case brings to eight the number of leak-related prosecutions brought under President Obama’s administration; under all previous presidents, there were three such cases.

“This prosecution demonstrates our deep resolve to hold accountable anyone who would violate their solemn duty to protect our nation’s secrets and to prevent future, potentially devastating leaks by those who would wantonly ignore their obligations to safeguard classified information,” said Ronald C. Machen Jr., the United States attorney for the District of Columbia, who was assigned to lead the investigation by Attorney General Eric H. Holder Jr.

In a twist, Mr. Sachtleben, 55, of Carmel, Ind., was already the subject of a separate F.B.I. investigation for distributing child pornography, and has separately agreed to plead guilty in that matter and serve 97 months. His total sentence for both sets of offenses, should the plea deal be accepted by a judge, is 140 months.

Here is the DOJ Press Release on the case.

Here is the information filed in SDIN (Southern District of Indiana). And here is the factual basis for the guilty plea on the child porn charges Sachtleben is also pleading guilty to.

So Sachtleben is the leaker, he’s going to plead guilty and this all has a nice beautiful bow on it! Yay! Except that there are several troubling issues presented by all this tidy wonderful case wrap up.

First off, the information on the leak charges refers only to “Reporter A”, “Reporter A’s news organization” and “another reporter from Reporter A’s news organization”. Now while the DOJ may be coy about the identities, it has long been clear that the “news organization” is the AP and “Reporter A” and “another reporter” are AP national security reporters Matt Apuzzo and Adam Goldman (I’d hazard a guess probably in that order) and the subject article for the leak is this AP report from May 7, 2012.

What is notable about who the reporters are, and which story is involved, is that this is the exact matter that was the subject of the infamous AP phone records subpoenas that were incredibly broad – over 20 business and personal phone lines. These subpoenas, along with those in the US v. Steven Kim case collected against James Rosen and Fox News, caused a major uproar about the sanctity of First Amendment press and government intrusion thereon.

The issue here is that Attorney General Eric Holder and the DOJ, as a result of the uproar over the Read more →

AP’s Burns: ISAF Systematically Under-Reporting Green on Blue Attacks

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For several months, I’ve been hammering on the Obama administration and the US military for describing green on blue attacks in Afghanistan, where Afghan military or police personnel attack NATO forces, as “isolated incidents“. In choosing the framing of isolated incidents, these officials are ignoring a seminal report issued just under a year ago, “A Crisis of Trust and Cultural Incompatibility” (pdf), which went into great detail in describing the cultural misunderstandings that lead Afghan forces to attack their coalition “partners”. Shortly after the report was released as unclassified, the US seemed to realize how damaging it is to the preferred narrative of isolated incidents explaining the attacks, and so it was decided that the report should be retroactively classified.

Yesterday, the AP’s Robert Burns made a major breakthrough in the story of green on blue attacks. Burns reported that the US military, in the form of ISAF, has maintained a policy of not reporting on soldiers who are wounded in green on blue attacks. As a result of reporting only fatalities, both the number of attacks and the number of coalition troops affected by them have been significantly under-reported:

The military is under-reporting the number of times that Afghan soldiers and police open fire on American and other foreign troops.

The U.S.-led coalition routinely reports each time an American or other foreign soldier is killed by an Afghan in uniform. But The Associated Press has learned it does not report insider attacks in which the Afghan wounds – or misses – his U.S. or allied target. It also doesn’t report the wounding of troops who were attacked alongside those who were killed.

/snip/

Jamie Graybeal, an ISAF spokesman in Kabul, disclosed Monday in response to repeated AP requests that in addition to 10 fatal insider attacks so far this year, there have been two others that resulted in no deaths or injuries, plus one attack that resulted in wounded, for a total of 13 attacks. The three non-fatal attacks had not previously been reported.

Graybeal also disclosed that in most of the 10 fatal attacks a number of other ISAF troops were wounded. By policy, the fact that the attacks resulted in wounded as well as a fatality is not reported, he said.

If the subject were not so serious, Graybeal’s explanation for why ISAF does not report incidents in which soldiers are wounded would be laughable:

Asked to explain why non-fatal insider attacks are not reported, Graybeal said the coalition does not disclose them because it does not have consent from all coalition governments to do so.

Never mind that since the bulk of forces in Afghanistan are US, most of those wounded would be US soldiers, Graybeal would have us believe that he can’t report on US soldiers being wounded because he doesn’t have express permission to report when soldiers from other coalition countries are wounded in green on blue attacks.

Burns got Graybeal to repeat the “isolated incident” mantra:

Graybeal said each attack in 2012 and 2011 was “an isolated incident and has its own underlying circumstances and motives.”

Burns completes that paragraph with a reference to and a quote from the retroactively classified report, but he merely refers to it as unclassified, passing over the hypocritical actions the military took in trying to classify the report once it began to be noticed.

Congratulations to Robert Burns on his excellent work in forcing ISAF, through Graybeal, to disclose what had previously been hidden intentionally.

 

The AP’s Remaining Competitive Function: Litigators for Big Media

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I’m intrigued by this speech the AP CEO made yesterday for several reasons.

The Bush administration turned the U.S. military into a global propaganda machine while imposing tough restrictions on journalists seeking to give the public truthful reports about the wars in Iraq and Afghanistan, Associated Press chief executive Tom Curley said Friday.

Curley, speaking to journalists at the University of Kansas, said the news industry must immediately negotiate a new set of rules for covering war because "we are the only force out there to keep the government in check and to hold it accountable."

Much like in Vietnam, "civilian policymakers and soldiers alike have cracked down on independent reporting from the battlefield" when the news has been unflattering, Curley said. "Top commanders have told me that if I stood and the AP stood by its journalistic principles, the AP and I would be ruined."

First of all, Curley’s comments seem to echo the report I discussed yesterday, which shows DOD spends more on domestic Psyop than foreign Psyop (thanks to Peregwyn for teaching me how to say it properly). 

Spending on public affairs has more than doubled since 2003. Robert Hastings, acting secretary of defense, says the growth reflects changes in the information market, along with the fact that the U.S. is now fighting two wars.

"The role of public affairs is to provide you the information so that you can make an informed decision yourself," Hastings says. "There is no place for spin at the Department of Defense."

But on Dec. 12, the Pentagon’s inspector general released an audit finding that the public affairs office may have crossed the line into propaganda. The audit found the Department of Defense "may appear to merge inappropriately" its public affairs with operations that try to influence audiences abroad. It also found that while only 89 positions were authorized for public affairs, 126 government employees and 31 contractors worked there.

Either his journalists did a great story and he almost immediately adopted it as his own pet issue. Or, knowing the AP, it just as likely worked the other way around: the AP was fed up with getting harassed by the military, so they allocated an unusual amount of reporting resources (interviews with 100 people and the review of more than 100,000 pages of documents, the article boasted) demonstrating what a problem the military’s new focus on Psyop is. Read more →

Turdblossom’s Still a Lying Sack; AP Journalists Are Still Suck-Ups

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A number of people have pointed to Ron Fournier’s "breezy correspondence" with Karl Rove in 2004.

In a chain under the subject line "H-E-R-O," Rove replied to an e-mail from Fournier by saying, "How does our country continue to produce men and women like this?"

Fournier replied, "The Lord creates men and women like this all over the world. But only the great and free countries allow them to flourish. Keep up the fight."

Fournier, now the AP’s acting Washington bureau chief, said Monday: "I was an AP political reporter at the time of the 2004 e-mail exchange, and was interacting with a source, a top aide to the president, in the course of following an important and compelling story. I regret the breezy nature of the correspondence."

But thus far, I haven’t seen anyone point out that AP’s love affair with Turdblossom is still going strong. In yesterday’s case, the AP’s Lynn Elber allowed Rove to completely steamroll her (probably all in the name of maintaining AP’s "breezy" relationship with him). Elber was reporting on Fox News EVP John Moody’s nonchalance about employing a contemptuous character like Karl Rove.

John Moody, Fox News executive vice president, was asked if it undercuts the channel’s credibility to have someone with Rove’s "political baggage" in its lineup.

"No," Moody replied, calling the former Bush adviser an authority on politics and adding that the current difference of opinion with Congress is between Rove and lawmakers.

But then Elber portrays Rove’s refusal to testify precisely as he’d like her to–as a combination of traditional executive privilege and the much more audacious absolute immunity that Steven Bradbury dreamed up.

But when a reporter tried to press the point with Moody, Rove jumped in to dispute characterization of the dispute as personal.

"It’s not between me and Congress. I’ve not asserted any personal privilege. This is between the White House and Congress," Rove said.

The issue centers on "the ability of the president to receive advice from senior advisers and for those senior advisers not to be at the beck-and-call of Congress for testimony," Rove said.

[snip]

Rove has said previously he is bound to follow the White House’s guidance, although he has offered to answer questions specifically on the Siegelman case — but only with no transcript taken and not under oath.

Read more →