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Our Government’s UnPATRIOTic Investigation of Aaron Swartz

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As I noted back in December 2010, as soon as Eric Holder declared WikiLeaks’ purported crime to be Espionage, it opened up a whole slew of investigative methods associated with the PATRIOT Act. It allowed the government to use National Security Letters to get financial and call records. It allowed them to use Section 215 orders to get “any tangible thing.” And all that’s after FISA Amendments Act, which permits the government to bulk collect “foreign intelligence” on a target overseas–whether or not that foreign target is suspected of Espionage–that includes that target’s communications with Americans. The government may well be using Section 215 to later access the US person communications that have been collected under an FAA order, though that detail is one the government refuses to share with the American people.

At no point would a judge have the opportunity to challenge Holder’s assertion that a website publishing documents offered up anonymously is engaged in Espionage. All it would take is Holder’s assertion that it was, and those investigative powers would become available.

No matter how many Americans got sucked up into that investigation.

Which is why I find it interesting that Aaron Swartz’ lawyers were asking, last summer–but got only indirect answers–about how the government had collected some of the evidence, particularly emails, turned over to the grand jury.

This paragraph asked the government to “identify the origin of any and all statements of Aaron Swartz including but not limited to emails, text messages, chats, documents, memoranda or letters, i.e., to identify the source from which each statement was received and the legal procedure used to obtain each such statement of the defendant.” Swartz has received in discovery internet memoranda and chats purporting to be from him. For example, the discovery contains a number of chats on googlegroups.com which contain entries which facially indicate that Swartz was a participant in the communications. The discovery also contains a number of emails which on their faces indicate that they were either to or from Swartz. Swartz requires the additional information requested – the source of these statements and the procedure used by the government to obtain them – to enable him to move to suppress such statements if grounds exist to do so, which he cannot determine without the requested information.

The government offered this explanation.

In Paragraph 15, the defendant would require the government to identify the origin of any and all statements of Aaron Swartz in its possession and the legal procedure used to obtain the statements. All of the emails, text messages, chat sessions, and documents containing statements provided by the defendant relevant to this case were obtained either from individuals with whom the defendant communicated or from publicly available websites stored on the Internet. No emails, texts messages, chat logs, or documents were obtained from Internet service providers using orders under 18 U.S.C. 2703(d). As previously represented to defense counsel, there was no court-authorized electronic surveillance in this case. [my emphasis]

The government admits the defense has asked for the content and origin of all Aaron’s statement in its possession. In response, it described how it had gotten Aaron’s statements relevant to this case–which may well be just a subset of Aaron’s statements in their possession. It also says that it did not obtain any of his statements (presumably referring to the larger potential universe) using 18 USC 2703(d), which is how DOJ demanded Twitter information on four WikiLeaks figures in late 2010 to early 2011. It suggests everything it got relevant to this case was either willingly from people involved in private conversations with him–though it didn’t say whether it asked for them specifically or not–or from publicly available places. And it alludes to an earlier representation to the defense about whether or not it had intercepted Aaron’s communications in this case.

I believe these are the representations in question, which comes from early discovery discussions in August 2011.

C. Electronic Surveillance under Local Rule 1 16.1 (C)(l)(c)

No oral, wire, or electronic communications of the defendant as defined in 18 U.S.C. § 2510 were intercepted relating to the charges in the indictment.

D. Consensual Interceptions under Local Rule 1 16.1 (C)(l)(d)

There were no interceptions (as the term “intercept” is defined in 18 U.S.C. § 2510(4)) of wire, oral, or electronic communications relating to the charges contained in the indictment, made with the consent of one of the parties to the communication in which the defendant was intercepted or which the government intends to offer as evidence in its case-in-chief.

As you can see, in this statement the government made in August 2011 anticipated some of the same dodges the government was making in June 2012.

But in the earlier statement, the limitation on its assertions are even narrower than the later one. Whereas by June 2012 they were making assertions about “this case” in general, when they first discussed the issue, they discussed only the communications related to “the charges contained in the indictment” (though presumably they may have still been considering other charges).

Also, the second paragraph makes it very clear it is discussing intercepts only as defined under the Title III definition for intercept, which pertains to communications collected in transit. I’m not sure what the government considers communications collected under FISA and stored, though I would not be surprised, given all the discussions about the government yoking Section 215 onto FAA if they had some creative treatment of those US person communications.

None of that is proof that they had accessed Swartz’ communications via other means or, indeed, that they have any communications outside those pertaining directly to JSTOR downloads.

But their very careful hedges sure seem to leave that possibility open.

 

John Cornyn Asks Eric Holder if Aaron Swartz Prosecuted because of FOIA Requests

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John Cornyn just sent a letter to Eric Holder asking a series of questions about the Aaron Swartz prosecution. (h/t Julian Sanchez) Many of them are utterly appropriate coming from a member of the Senate Judiciary Committee: why Carmen Ortiz said the prosecution was “appropriate,” whether DOJ’s prior investigations, plural, of Swartz had had an influence on their conduct, why Ortiz filed the superseding indictment. Kudos to Cornyn for conducting oversight, as intended.

But here’s a question I didn’t expect, the second of seven questions.

Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.

It’s one thing to ask whether Swartz was targeted–and he appears to have been–for his advocacy on Open Access and Internet freedom.

But to ask whether this was retaliation for his use of FOIA? As far as I know, only Jason Leopold and I have even looked at his FOIAs in relation to his prosecution, and only for insight onto how he responded to it.

Shorter DOJ: It’s No Big Deal if DEA Agents Destroy Evidence

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DOJ’s Inspector General wrote Senators Collins and Lieberman a letter summarizing its investigation into DEA Agents involved in the Secret Service sex scandal in Cartagena, Colombia.

What’s getting attention is that the DEA agents arranged a prostitute for a SS Agent. All three engaged sex workers the night in question.

But what should be getting attention is that the DEA agents, when they learned about the scope of the investigation, deleted incriminating information from their Blackberries. And DOJ–in part because it conducted compelled interviews it knew couldn’t be used in a prosecution–won’t charge them.

The OIG investigation found further that all three DEA agents had deleted data from their DEA issued Blackberry devices, and that DEA agents #1 and #2 did so after learning of the scope and nature of the OIG’s investigation. DEA agent #1 admitted to the OIG that he deleted relevant data from his Blackberry after being requested to surrender his device to the OIG. DEA agent #2 stated that he “wiped” all data from his Blackberry before providing it to the OIG, but denied that he intended to obstruct the OIG investigation. He stated that he wiped all data from his Blackberry in an effort to conceal embarrassing communications between him and his wife.

The investigation was an administrative review and all of the interviews of the DEA agents were compelled. Given all of those facts and circumstances, we did not view the matter to warrant criminal prosecution.

By compelling the interviews, the IG effectively immunized the DEA Agents, ensuring they could not be charged with obstruction. Not to mention, the Scott Bloch precedent–in which he deleted evidence and now DOJ is bending over backward to make sure he doesn’t pay any price for lying about doing so–makes it clear that DOJ will never prosecute one of its own for the kind of crime they prosecute others for all the time.

Still, let it be know that DOJ doesn’t give a shit that its DEA Agents obstruct justice and delete evidence.

The Lawyers that Stayed, the Lawyers that Left

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Charlie Savage covers a very troubling development in the case of Ali al-Bahlul, a Yemeni who is serving a life sentence for serving as Al Qaeda’s videographer.

After Hamdan had his conviction vacated by the DC Circuit last year because material support was not a war crime at the time of his support for al Qaeda, Bahlul’s conviction was put in jeopardy too. As Savage earlier reported, there was a debate among the national security lawyers. And in spite of the fact that almost everyone disagreed with Eric Holder on this count, Holder made them press forward anyway.

The Obama administration, after a high-level debate among its legal team, told a federal appeals court on Wednesday that the conviction of a Guantánamo Bay prisoner by a military commission in 2008 was valid even though the charges against him — including “conspiracy” and “material support for terrorism” — were not recognized as war crimes in international law.

Attorney General Eric H. Holder Jr. decided to press forward with the case, fighting the appeal of a guilty verdict against the prisoner, a Yemeni man named Ali al-Bahlul. In an unusual move, Mr. Holder overruled the recommendation of the solicitor general, Donald B. Verrilli Jr., who had wanted to drop the case because the appeals court had rejected the same legal arguments in another case several months ago, according to officials familiar with the deliberations.

The chief prosecutor of the military commissions system, Brig. Gen. Mark Martins, had also urged the Justice Department to drop the case and pointedly did not sign the 22-page brief to the court on Wednesday. It concedes that the judges must side with Mr. Bahlul at this stage because of the earlier ruling in the other case, but argues that the earlier ruling was wrong.

It sure appears that Eric Holder is just counting on getting the same kind of batshit crazy ruling he got in Latif, so as to sustain his legally unjustified detention.

What’s especially interesting about this, however, is the Kremlinology. Back in early December over the course of two days time, both Jeh Johnson and Harold Koh resigned. It felt very much like a protest, or a refusal to be part of something that struck them as legally unsound (I thought then–as still suspect–it was partly a response to John Brennan’s halt of the effort to put drones on a sound legal footing).

And now we know that around that time, the Attorney General was overriding not just their advice, but that of most of the others involved in this, including the Solicitor General and the Military Commission Chief Prosecutor.

Yesterday’s brief, incidentally, was signed by the Acting Deputy General Counsel at DOD, not Johnson (of course).

So Johnson and Koh are gone. And Eric Holder? The Administration just announced he will stay into the second term. (And, not incidentally, yesterday I floated the suggestion that Lisa Monaco, who sided with Holder on this fight, would be named to replace FBI Director Mueller later this year; a number of smart people suggested that was a smart prediction.)

Update: In the WaPo version of this story, Steve Vladeck suggests that if the government really planned to push forward with an appeal of this to SCOTUS (that is, to reverse the ruling in Hamdan II), the language in the brief would have been stronger.

Incidentally, I wonder yet again about the case of the three Somalis in this context. Is this why they added a conspiracy charge to their indictment, to establish that as a precedent in this situation?

The DOD Targeted Killing Memo Not Addressed to DOD

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I’m still deep in the weeds of Judge Colleen McMahon’s opinion rejecting the NYT and ACLU’s efforts to get the legal basis for killing Anwar al-Awlaki, The Child (as McMahon calls Anwar’s son Abdulrahman), and Samir Khan.

I observed yesterday that McMahon strongly hinted that the DOD OLC memo identified by the government in response to the FOIA may not be the legal authority under which Awlaki was ultimately killed. She seems to suggest the DOD memo may not have been relied on, and there may be some other document that authorizes the government–possibly the CIA–to kill Awlaki.

And from that I wondered whether the June 2010 memo that both Scott Shane and Charlie Savage had tips on, and which Savage described in detail, was the DOD memo, not the memo used.

There’s another detail of all this that was apparent before but which McMahon emphasizes.

The DOD memo was not addressed to the DOD.

DoD also excepts to disclosure of this document [the OLC memo] (though it was apparently not prepared for or directed to the Defense Department),

[snip]

That may be so, but it is sheer speculation that this particular OLC memorandum–addressed to the Attorney General “pertaining to the Department of Defense” and “regarding a potential military operation in a foreign country”–contains the legal analysis that justifies the Executive Branch’s conclusion that it is legal in certain circumstances to target suspected terrorists, including United States citizens, for killing away from a “hot” field of battle. [my emphasis]

She’s right. Here’s how OLC’s John Bies described the document.

OLC identified one OLC opinion pertaining to the Department of Defense marked classified as responsive to the Shane and Savage requests. That OLC opinion contains confidential legal advice to the Attorney General, for his use in interagency deliberations, regarding a potential military operation in a foreign country.

This is interesting for several reasons.

As I said, the memo Savage described was written in June 2010. Six months before, on December 24, 2009, JSOC–that is, DOD–tried to kill Awlaki. They did so the day before (according to the William Webster report and subsequent Intelligence Community testimony) the IC came to believe Awlaki was operational. And while sources subsequently told Dana Priest that Awlaki wasn’t the primary target of that drone strike and only afterwards got added to the JSOC target list (though he was still added six months before the one memo we know about), a cable released by WikiLeaks makes it fairly clear that then Yemeni President Ali Abdullah Saleh believed Awlaki was a direct target of that strike.

Whether the June 2010 memo is the disclosed OLC memo or not, it’s clear it was written after the government had already tried to kill Awlaki, and had done so at a time when he was understood to be a really obnoxious propagandist, but not–as the OLC memo laid out would be required to justify targeting–an operational leader of al Qaeda. And yet it is being protected (this is true whether or not it is the DOD memo, because the CIA documents were exempted for this reason as well) as a predecisional document.

That suggests that JSOC–whose actions were controlled by CentCom, which was then headed by David Petraeus, who would be in charge of CIA when Awlaki was killed by a strike understood to be a CIA one–may have tried to kill Awlaki without having OLC legal guidance in hand authorizing it.

Though note there is an entirely different possibility, which is that the DOD memo is much older, written before the time the US killed Kamal Derwish much as they did Samir Khan and as they claim to have tried to kill Awlaki the first time, by treating him as collateral damage to a strike on someone else.

They may not have had legal guidance, but they had the President’s personal sign-off (remember, too, that the cables discussing the first attempted strike on Awlaki were copied to the White House).

As part of the operations, Obama approved a Dec. 24 strike against a compound where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said.

And if the revealed memo is the DOD one, when OLC finally wrote legal guidance covering DOD that would have authorized the December 24, 2009 strike on Awlaki (except that the intelligence clearly did not, at that point, support it), they may have addressed that opinion not to DOD, but to the Attorney General.

There are two more interesting details of this.

First, the only document revealed in the FOIA response that claimed a Presidential privilege–revealed in the OIP Vaughn Index and also discussed by the OLC–is a January 18, 2010 set of draft talking points for an Eric Holder briefing of the President. In the days after DOD first tried to kill Awlaki and around the same time, according to Priest’s not entirely credible sources, that Awlaki was added to the JSOC kill list, Eric Holder briefed the President about legal issues relating to killing Awlaki. And (if the June 2010 memo is the disclosed one) six months later OLC wrote Holder a memo authorizing a DOD strike.

Note, too, that OLC was fully forthcoming with the documents it had pertaining to the Awlaki targeting. DOJ’s Office of Information Policy, which is in charge of responding to FOIAs including the Attorney General and Deputy Attorney General, was not.

All of this is really inconclusive. Though unless the DOD memo is a much older one, it seems to indicate JSOC targeted Awlaki on Presidential authority, not OLC guidance.

This is, to be clear, inconclusive, since we don’t know whether the DOD memo really is the memo Savage described.

But it appears more and more like what happened with torture: which is that the spooks were executing the program under Presidential authority–that is, under the Gloves Come Off Memorandum–and only after someone complained internally about the legal sketchiness of it all, did they go about getting an OLC opinion sanctioning the actions that had already happened.

Colleen McMahon’s Cheshire Cat: CIA’s Stephen Preston

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As you no doubt remember from Alice in Wonderland, the Cheshire Cat keeps disappearing. Indeed, the cat’s habit of disappearing at will presents an insurmountable challenge to the Queen’s normally simple rules on executions.

When [Alice] got back to the Cheshire Cat, she was surprised to find quite a large crowd collected round it: there was a dispute going on between the executioner, the King, and the Queen, who were all talking at once, while all the rest were quite silent, and looked very uncomfortable.

The moment Alice appeared, she was appealed to by all three to settle the question, and they repeated their arguments to her, though, as they all spoke at once, she found it very hard indeed to make out exactly what they said.

The executioner’s argument was, that you couldn’t cut off a head unless there was a body to cut it off from: that he had never had to do such a thing before, and he wasn’t going to begin at HIS time of life.

The King’s argument was, that anything that had a head could be beheaded, and that you weren’t to talk nonsense.

The Queen’s argument was, that if something wasn’t done about it in less than no time she’d have everybody executed, all round. (It was this last remark that had made the whole party look so grave and anxious.)

Alice could think of nothing else to say but ‘It belongs to the Duchess: you’d better ask HER about it.’

‘She’s in prison,’ the Queen said to the executioner: ‘fetch her here.’

And the executioner went off like an arrow. The Cat’s head began fading away the moment he was gone, and, by the time he had come back with the Duchess, it had entirely disappeared; so the King and the executioner ran wildly up and down looking for it, while the rest of the party went back to the game.

While Judge Colleen McMahon’s reference to Alice was probably just an offhand reference, I submit that she’s got a Cheshire Cat right in the middle of her ruling: CIA General Counsel Stephen Preston and the Gloves Come Off Memorandum of Notification.

As you read her ruling, it’s helpful to remember that she has seen some materials that plaintiffs ACLU and NYT have not. Moreover, this ruling was not sufficient to her argument. She has also written a classified Appendix.

This opinion will deal only with matters than have been disclosed on the public record. The Government has submitted material to the Court ex parte and for in camera review. Certain issues requiring discussion in order to make this opinion complete relate to this classified material. That discussion is the subject of a separate, classified Appendix to this opinion, which is being filed under seal and is not available to Plaintiff’s counsel.

As a threshold matter, then, it is perhaps judicious to assume that any big holes in McMahon’s ruling are dealt with, by necessity, in that Appendix.

There is one obvious, glaring hole (though I am biased, given that I was the first to point to it in the government’s filings): her analysis of whether the government’s searches for documents was adequate. After laying out the relevant standard (page 35), she simply lists the Government’s explanation of its searches–one of which is a classified CIA declaration–and concludes,

This court has reviewed these explanations and concludes that the searches by the responding agencies comported with their statutory obligations.

Again, I’m biased, having pointed out all sorts of reasons why the searches were inadequate, but for McMahon to conclude they were, there must be more compelling evidence in that classified declaration, and she should have to explain how those facially inadequate searches were adequate.

But consider her treatment of a different document I’ve found missing in the past: Preston’s very public speech obliquely covering targeted killing. McMahon acknowledges (page 20) that the plaintiffs have included that in their list of public statements Obama officials have made about targeted killing, but she doesn’t give it the detailed treatment she gives several other speeches by John Brennan, Harold Koh, President Obama, Jeh Johnson, and Eric Holder.

I find that significant given that Preston laid out different logic for the legality of targeted killing than the others did, situating it in Article II rather than in the AUMF.

Preston checks off the first box–authorization under US law before the op–by looking to Article II, not the AUMF Congress passed.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law. [my emphasis]

That’s interesting for several reasons. First, it situates the authority to use lethal force not in the stated basis OLC is using–the one SCOTUS has affirmed (sort of), but in Article II. Just where John Yoo would look to situate it.

This also means that CIA maintains it has this authority–presuming a Presidential Finding–outside the context of a declared war.

The memo described by Charlie Savage, like all the other speeches, relies on the AUMF.

Mr. Awlaki, who was born in New Mexico, was also accused of playing a role in a failed plot to bomb two cargo planes last year, part of a pattern of activities that counterterrorism officials have said showed that he had evolved from merely being a propagandist — in sermons justifying violence by Muslims against the United States — to playing an operational role in Al Qaeda in the Arabian Peninsula’s continuing efforts to carry out terrorist attacks.

Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

Preston’s speech suggests that if OLC were writing a memo authorizing the CIA to kill Awlaki–as distinct from a memo authorizing DOD to kill him–it wouldn’t necessarily situate the authority in the AUMF. And from that we can surmise that DOJ might have an entirely different memo for CIA than for DOD, with the one described by Savage being the DOD one.

I’ve suspected that’s the case for quite some time (I’ll try to rewrite the 2 very long unpublished posts laying this out).

But I suspect it even more so now.

About 30 pages of McMahon’s opinion addresses why DOD can withhold OLC opinions it has acknowledged. As part of that discussion, she asserts the NYT only wants the DOD opinion.

The Times sole apparent goal at this point is to get a hold of the OLC-DoD Memo, which, it assumes, contains the final legal analysis and justification it seeks.

The ruling doesn’t note this, but I think NYT is doing more than assume here. Savage suggested, after all, that the memo he described was the memo that governed the killing of Awlaki.

But the document that laid out the administration’s justification — a roughly 50-page memorandum by the Justice Department’s Office of Legal Counsel, completed around June 2010 — was described on the condition of anonymity by people who have read it.

So I assume he was told that the memo described to him was the memo that governed the killing a full 15 months later, at a time when CIA had taken over the lead in drone killings in Yemen from DOD.

But McMahon leaves a lot of suggestions that this is not the case, particularly in this long passage explaining why deliberative privilege governs the DOD memo the government has acknowledged. (Thoughout this section, bold emphasis mine, italics McMahon’s, and citations omitted.)

But there is no suggestion, in any of those speeches or interviews, that the legal reasoning being discussed is the reasoning set out in the OLC-DoD Memo, a document which the Government acknowledges exists. This document, unlike the OLC opinions on local enforcement of immigration laws, has never been mentioned in any public statement. For that matter, OLC has never been mentioned in any public statement; none of the speeches attribute any legal principles announced to OLC or to any opinion it has issued.

Indeed, she even quotes from a colleague’s opinion raising the possibility of other memos addressing the same topic.

My colleague Judge Scheindlin noted [in National Day Laborer Organization v ICE], “[U]nless the defendants have unlawfully withheld other legal memoranda from plaintiffs and this Court, it was the only document comprehensively laying out the legal authority for making Secure Communities mandatory. Thus, the analysis in the Memorandum seems to be the only rationale that the agency could have relied upon and adopted as the legal basis for the policy.”

In this case, however, there is no evidence that the Government “continually relied upon and repeated in public the arguments made” specifically in the OLC-DoD Memo. Read more →

Company that Engaged in Criminal Wiretapping Hails Obama’s Wiretap Extension

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The Wall Street Journal–owned by the same guy whose company and son are in trouble in the UK for criminally wiretapping those they wanted to collect information on–has found something to love in the Obama Administration.

Well, not everything President Obama and the 112th Congress managed to achieve is so terrible. With scarcely any notice, much less controversy, they did at least preserve one of the country’s most important post-9/11 antiterror tools.

That would be wiretapping, which you may recall liberals portrayed during the George W. Bush era as an illegal and unconstitutional license for co-President Dick Cheney and his spymasters to bug the bedrooms of all U.S. citizens. But now Washington has renewed the 2008 amendments to the Foreign Intelligence Surveillance Act that were due to expire at the end of 2012, with no substantive changes and none of the pseudo-apoplexy that prevailed during the Bush Presidency.

In addition to applauding Obama’s “fairly ruthless antiterror prosecut[ions] and unapologetic assert[ions] of Presidential powers,” the WSJ revels in this opportunity to mock those who thought illegal wiretapping was wrong.

This is a turnabout from 2007 and 2008, when letting U.S. spooks read al Qaeda emails or listen in on phone calls that passed through domestic switching networks supposedly spelled doom for the American Republic. Democrats spent years pretending that Mr. Bush’s eavesdropping program was “wrong” and “destructive,” as Attorney General Eric Holder put it at the time, lamenting that “I never thought I would see a President act in direct defiance of federal law.”

Maybe this mutual love of abusive wiretapping is why–as Elliot Spitzer has pointed out–DOJ has thus far failed to pursue News Corp under Foreign Corrupt Practices Act.

And finally, where is the inept U.S. Department of Justice in all this?

The DOJ has brought many irrelevant and tiny cases against companies for violating the Foreign Corrupt Practices Act, which makes it illegal to bribe either individuals or government officials, even in a company’s overseas operations. The DOJ loves to use the statute to show just how tough it is.

Yet now they have the most important case sitting right there in front of them. It’s easy. Even a rookie could field this one.

But what are they doing? It’s not clear.

If they fail to make this case against News Corp., Eric Holder is a failure as attorney general.

After all, Eric Holder’s DOJ successfully fought to give legal sanction to Cheney’s illegal wiretapping. It would look rather silly, after having extended warrantless wiretapping past the end of the Obama Administration, for them to prosecute Rupert Murdoch for doing the same thing Cheney did.