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Bomb plot briefing may undercut DOJ's case for AP records seizure

Manuel Balce Ceneta / AP file

CIA Director John Brennan, shown testifying on Capitol Hill on April 11, testified he conducted a background briefing after the Associated Press reported the Yemen bomb plot in May 2012 to avoid "dangerous questions and speculation."

A massive Justice Department investigation into the disclosure by the Associated Press of an ongoing covert operation against an al Qaeda suicide cell in Yemen -- a probe that included a sweeping  secret subpoena of the press association’s phone records  -- has been justified by U.S. officials on the grounds that the news organization “put the American people at risk.”

But that assertion by Attorney General Eric Holder could be undermined by the White House’s decision to publicly comment about the operation at the time and reveal details beyond those in the original AP story, according to legal experts and counterterrorism officials.

Within hours after the AP published its May 7, 2012 story, then-White House counterterrorism adviser John Brennan, currently the director of the CIA, held a background conference call in which he assured television network commentators that the bomb plot was never a threat to the American public or aviation safety.

The reason, he said, is because intelligence officials had “inside control” over it.

He later told the Senate Intelligence Committee that he conducted the briefing to avoid “dangerous questions and speculation” about the operation.

Brennan’s account came after the AP reported what it called “an intelligence victory for the United States,” saying  intelligence officials had thwarted an “ambitious plot” by an al Qaeda affiliate in Yemen “to destroy a U.S. bound airliner” using a refined underwear bomb.  

U.S. officials say that, when they were first contacted by the AP, they were concerned publication of the story would endanger the life of a British informant who had penetrated the group. AP executives say they agreed to hold their story until they were assured by government officials that “national security concerns had passed.”

Brennan’s use of the phrase “inside control,” a detail not initially included in the AP story, quickly led U.S. news organizations to report that the plot had been foiled by an undercover informant.

When asked about recent news of a subpoena of AP phone records, President Barack Obama explained Thursday that information leaks can put U.S. citizens at risk and that he makes '"no apologies" over being concerned about sensitive material.

“The U.S. government is saying it never came close because they had insider information, insider control, which implies that they had somebody on the inside who wasn’t going to let it happen,” Richard Clarke, former White House counterterrorism adviser to Presidents George H.W. Bush, Bill Clinton and George W. Bush and who participated on the conference call with Brennan, said on ABC’s “Nightline” that evening.

NBC’s Chief Justice Correspondent, Pete Williams, did further reporting for Nightly News the next night.  “It turns out that the bomber was actually an informant cooperating with intelligence services friendly to the United States,” Williams reported.

Bolstering his reporting was an interview with Homeland Security Janet Napolitano.

“I want to say that the device was always under control, and that no one in the Unites States was ever at risk because we did have control,” she said.

“The administration’s background statements helped reporters put two and two together and ultimately led to the disclosure that did reveal the existence of an intelligence source,” said Michael Leiter, the former director the National Counter-Terrorism Center under Presidents George W. Bush and Barack Obama and now an NBC News counterterrorism analyst. “That’s not to say that the original leak didn’t also do damage and undermine operations.”

Tommy Vietor, then chief national security spokesman for the White House, disputed the idea that Brennan disclosed sensitive details in his background briefing and said  it was “ridiculous” to equate Brennan’s use of the  phrase  “inside control” with having an “informant.”  

U.S. officials acknowledge that, after they were contacted by the AP and told it was going to publish the story, they alerted British intelligence, which scrambled to extract the informant and his family from Yemen. But the leak infuriated British officials and strained relations between MI-6, the country’s intelligence service, and the CIA, officials say. Moreover, U.S. national security officials familiar with the matter said the real damage was done by the original leak to the AP because it revealed that the FBI had possession of the bomb. It also ended any chance of using the informant in the future. “They were going to keep him in there,” said the official.

Still, the willingness of administration officials to publicly comment on the plot could undercut the Justice Department’s position if the AP decides to take any legal action challenging the secret subpoenas.

“It complicates considerably the force of the argument that this disclosure seriously compromised national security,” said Floyd Abrams, a leading First Amendment lawyer who represented the New York Times in a historic legal  battle over its publication of the Pentagon Papers.

In that case, Abrams noted, the Times successfully argued that much of what the Justice Department had argued was damaging in the papers had already been revealed in public statements by U.S. government officials.

David Schulz, a lawyer for AP, said the news organization is “exploring all our  options” for  legal action to challenge the Justice Department’s secret subpoena for about two months of AP phone records on 20 separate telephone lines in an effort to identify the leaker.

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Among those options, he said, were filing suit for a “declaratory judgment” that the subpoena had violated its reporters’ rights and a demand for a return of the phone records and an order that the Justice Department destroy all copies. In doing so, the AP may cite the comments by Brennan as evidence that the leak did not harm national security in the way that the Department of Justice has asserted, h said.

“We were surprised by the attorney general’s comments yesterday about the potential security threat  from the leak under investigation,” Schulz said in an email to NBC News. “The president’s top national security advisor at the time said there was never a risk to air safety, and ‘no one in the United States was ever at risk.’ These shifting positions show the malleable nature of national security claims, and underscore the need for independent review by a judge when civil rights are infringed to protect against asserted security threats.”

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