The Volokh Conspiracy

On Friday, Jonathan pointed out United States v. Blewett, the new Sixth Circuit decision on the 100-1 crack-cocaine sentencing disparity. Jonathan described the issue in that case as being whether the 2010 Fair Sentencing Act applied retroactively. But the most remarkable part of Blewett actually decides a different question that was neither briefed nor argued: Whether the 100-1 disparity in effect before 2010 was constitutional. And the majority’s argument for why the 100-1 disparity was unconstitutional strikes me as not just wrong but obviously so.

According to the majority opinion signed by Judges Merritt and joined by Judge Martin, the Equal Protection Clause requires judges to disregard bodies of law that have known racially discriminatory effects. That’s the case because applying law that has a known discriminatory impact would be an intentional act of discrimination by judges that the Equal Protection clause forbids. Here’s the key part of the opinion:

In view of the statistical facts and the widespread congressional consensus leading to the adoption of the Fair Sentencing Act’s remedial provisions [replacing the 100-1 ratio in 2010 with an 18-1 ratio], there can be no doubt that the old crack law was racially discriminatory in effect. As a matter of legal doctrine, there is no equal protection violation without discriminatory intent. See Washington v. Davis, 426 U.S. 229 (1976). When the old 100-to-1 crack cocaine statute was adopted, it presumably did not violate the Equal Protection Clause because there was no intent or design to discriminate on a racial basis. Its adoption was simply a mistake. Since 1986, however, we have gained knowledge of the old statute’s devastating effect on blacks. Congress itself acknowledged this problem by enacting the Fair Sentencing Act.

The Fair Sentencing Act was a step forward, but it did not finish the job. The racial discrimination continues by virtue of a web of statutes, sentencing guidelines, and court cases that maintain the harsh provisions for those defendants sentenced before the Fair Sentencing Act. If we continue now with a construction of the statute that perpetuates the discrimination, there is no longer any defense that the discrimination is unintentional. The discriminatory nature of the old sentencing regime is so obvious that it cannot seriously be argued that race does not play a role in the failure to retroactively apply the Fair Sentencing Act. A “disparate impact” case now becomes an intentional subjugation or discriminatory purpose case. Like slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences is a denial of equal protection.

As I understand the reasoning, Judges Merritt and Martin work around the requirement of invidious purpose to discriminate by saying that judicial application of laws with known discriminatory effect forces the judges to have invidious purpose to discriminate when they apply the law. In other words, discriminatory effect plus awareness of it amounts to intentional discrimination in the act of applying the law. And the need to avoid discrimination not only trumps the law but also trumps binding precedents saying that the law is constitutional. The argument doesn’t work on its face, as a judge who applies binding law that may have a discriminatory effect does so not because she wants to achieve a discriminatory result but because that result is what the controlling law requires. But in any event, Judge Gilman’s dissent nicely points out the binding precedent to the contrary. The majority doesn’t even bother with much of a response to Judge Gilman’s dissent: See Footnote 6, which for the most part doesn’t even track forms of legal argument.

I agree that the 100-1 disparity was terrible policy. But the majority’s constitutional analysis strikes me as not just wrong but obviously so.

Over at MotherJones, Kevin Drum has an interesting post on the AP leak investigation: Here’s Why the Government Went Ballistic Over the AP Leak.

Also, over at Slate, Emily Bazelon and former VC blogger Eric Posner debate whether the subpoenas of the AP records were justified. Eric gets the better of the argument, I think, but it’s a helpful exchange either way.

From the moment of the initial disclosure of IRS targeting of conservative groups, observers have speculated about the timing and location of the disclosure. Could this really have been an unplanned, impromptu remark? No. In fact, the question was planted and Lois Lerner’s statement was pre-planned. As additional information trickles it out, it is also becoming clearer that the actions at issue were more widespread, and more widely known within the agency, than initially suggested. Lerner herself sent at least one letter to a Tea Party group seeking additional information, and many of her initial claims don’t stand up to scrutiny. It’s no wonder Lerner has yet to agree to testify before Congress (though I doubt she’ll have much choice in the matter for long).

UPDATE: Was the decision to target Tea Party groups an understandable (if unwise) response to a surge in applications for 501(c)(4) status? Not according to this report in The Chronicle of Philanthropy.

Top IRS officials have been saying that a “significant increase” in applications from advocacy groups seeking tax-exempt status spurred its Cincinnati office in 2010 to filter those requests by using such politically loaded phrases as “Tea Party,” “patriots,” and “9/12.” . . .

The scrutiny began, however, in March 2010, before an uptick could have been observed, according to data contained in the audit released Tuesday from the Treasury Department’s inspector general for tax administration. . . .

The audit says the IRS began to use “inappropriate criteria” to single out applications in March 2010. By April 2010, a “sensitive case report” was issued on “Tea Party cases,” indicating that managers in Cincinnati were aware of the sensitive nature of the reviews.

According to the audit, 1,735 groups applied for 501(c)(4) exemption for the federal fiscal year that ended September 30, 2010—six months after the IRS began its scrutiny. That was down slightly from 1,751 the prior year.

The number grew to 2,265 during the fiscal year that ended September 30, 2011, and to 3,357 in 2012. By then the criteria the IRS was using to flag groups had changed three times to include searches for groups with names that contained “Bill of Rights,” “educating on the constitution,” and “limiting/expanding government.”

Meanwhile, at Legal Ethics Forum, John Steele wonders “where were the lawyers?”

FURTHER UPDATE: The NYT reports that high-level administration officials knew about the potential targeting of conservative groups in 2012, months before the election.  See also this report from NBC’s Lisa Myers.

Floyd Abrams was invited to say a few words about his latest book Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013). His comments are set forth below.

When one tries to determine which of his articles, speeches, testimony, letters, reviews and the like over a 45-year period are worth publishing in book form, the choices are not easy. It’s not that there are so many imperishable morsels; passing the ugly question of whether anything is worth publishing, there remains the far more prosaic issue of which issues remain live ones, and which positions are worth rearguing.

I had, for example, been dubious about whether to include my 2005 testimony before the Senate Committee on the Judiciary in favor of adopting a federal shield law for journalists and more dubious still about including a 1979 speech (the oldest offering in the book) about the same subject. But I thought the issue, rather quiescent in the past few years, could well resurface in the years to come — and then came the Department of Justice with its breathtakingly subpoenas to the telephone companies that serve Associated Press. I cannot offer thanks, but I am appreciative.

So, too, with privacy issues. The conflicting claims of disclosure and privacy have led to far less litigation than I had expected. I decided, nonetheless, to include a speech I gave that is quite critical of the most celebrated and cited law review article ever written, the classic Brandeis-Warren paean to privacy published in the Harvard Law Review in 1890. The renewed discussion, after the terrorist explosions at the Boston Marathon this year, about the amount of cameras that film so many of our activities, has led to renewed discussion of various aspects of privacy and I am pleased that I included at least one article of mine weighing in on the subject.

Probably the most eclectic chapter in Friend of the Court is the first which deals, in a variety of ways, with state censorship. The first entry , one of my favorites, is an introduction I wrote to a book of New York Times articles published throughout the twentieth century about censorship here and abroad.

Starting with the observation that “[t]here is a terrible logic to state censorship,” I seek to summarize highpoints of a book which brims with life as it describes in real time political censorship in Hitler’s Germany and Stalin’s Soviet Union, theatrical censorship in England and France, and what would now be viewed as unthinkable censorship in our own nation.( A laconic description of a hearing in New York in 1921 in which a “story entitled ‘Ulysses’ “ which was “the product of one Joyce” was ordered banned because “parts of the story seemed to be harmful to the morals of the community” is particularly memorable). From there, the book moves to a debate I had with Professor Catherine MacKinnon about censorship, chaired by Anthony Lewis, to congressional testimony about free trade in ideas; a summary of the Brooklyn Museum case; two book reviews; and a letter defending the ACLU against charges that it had wrongfully defended Nazi speech in the Skokie Case. It is a busy chapter.

Other chapters are narrower in scope, dealing with American free speech law vis-à-vis that of other nations (particularly the United Kingdom); the First Amendment and national security; and libel, privacy, copyright and other areas of continuing conflict. Particularly controversial, I suppose, is my defense (sometimes a lonely one) of the Citizens United ruling and my criticism of Julian Assange for what I believe to be his repeated recklessness in determining what documents to release.

A number of the offerings include significant criticism of the press and sometimes its purported defenders. In that respect, a major theme of the book is my concern about what I believe is the far too politicized way First Amendment views are formulated and expressed. Historically, the American Right has been either indifferent to First Amendment claims or resistant to them. In more recent days, however, the Right has supported First Amendment claims that have been consistent with its adherents’ ideological overview. Motivations aside, I think this has served First Amendment interests well. At the same time, the Left has seemed to me far too prepared to subordinate libertarian First Amendment interests to other interests.

I quote twice in the book from a passage of Isaiah Berlin that I find particularly powerful: “Everything is what it is: liberty is liberty, not equality or fairness or justice or culture or human happiness or a quiet conscience.” I criticized The Nation, for example, for complaining that the “wrong side” keeps “winding up with the First Amendment in its corner” and urged it to rethink its “political positions to avoid being on the wrong side of the First Amendment.”

I conclude Friend of the Court with a plea to all that I believe is consistent with the whole book: “Is it really too much to ask that those who claim that they care about the First Amendment—everybody, that is—stand in favor of free speech even when the speech at issue pains them ideologically?”

After years of resistance, I have finally joined Twitter. Perhaps, as the Borg would say, resistance is futile and assimilation into Twitter is inevitable. For readers who may be interested, my Twitter username is IlyaSomin.

Despite this capitulation, I will not be completely assimilated into the Twitterverse. Given my rational ignorance about pop culture other than sports and science fiction, I won’t be tweeting any celebrity-related gossip. Not even if I somehow turn into the Twitter equivalent of Locutus. Instead, I will most likely be using the account to tweet about my activities elsewhere, such as recent or forthcoming books, articles, speaking appearances, and the like.

The Washington Post reports on reasons for some skepticism about the seriousness of the leak that prompted the seizure of AP phone records.

The targeting of Tea Party and other right-leaning groups by the IRS is a major scandal. Yet, as Walter Olson notes, some of the Administration’s critics have gone a bit overboard trying to tie the scandal to the White House.

It’s one thing to note the lopsided political contributions of IRS employees, including those in the relevant office (as reported by Tim Carney). It is quite another to try and tar some of the officials involved because of alleged political ties of their spouses simply because they work at a major law firm and the firm (or its partners) made political contributions to the President or anyone else. Making such charges, as Olson notes, amounts to “firing blanks.”

Responding to press questions about the IRS scandal, White House spokesperson Jay Carney claimed that the IRS is an “independent agency.” At the Federalist Society’s new Executive Branch Review blog, former Assistant Attorney General Eileen O’Connor, who oversaw the Justice Department’s Tax Division, explains that Carney was quite wrong on this point.

Most Executive Branch departments are headed by a Cabinet Secretary (except for the Department of Justice, which is headed by the Attorney General of the United States) who is nominated by the President and confirmed by the Senate. Within the Departments are agencies that carry out the various responsibilities of the Department. They, too, are headed by Senate-confirmed Presidential appointees. An “independent agency” is an agency of the federal government that is not part of an Executive Branch department. These are generally boards and commissions, like the National Labor Relations Board and the Federal Communications Commission.

But just as the Federal Bureau of Investigation is part of the Department of Justice, the Internal Revenue Service is part of the Department of Treasury. As with other federal agencies, each is headed by a Senate-confirmed Presidential appointee. Neither of these is an “independent agency.”

Ammon Simon offers more on this point here.

Not only is the IRS not an “independent” agency, but it appears that the substantial bonuses received by the head of the IRS tax-exempt division when the targeting of conservative groups occurred would have been approved by the White House because they exceeded $25,000. This official is now in charge of the IRS’ Affordable Care Act office.

Most of the reporting on the DOJ investigation into the leak to the AP has said that the DOJ obtained two months of telephone records. The claim of a two-month period comes from the AP’s own reporting about what DOJ disclosed to the AP in its notice about the collection. The AP story began: “The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a ‘massive and unprecedented intrusion’ into how news organizations gather the news.” (emphasis added)

According to a recent clarification by DOJ, however, that reporting was wrong. In a letter signed by Deputy AG James Cole, DOJ pointed out that although the subpoenas covered calls made during two calendar months, April and May 2012, the subpoenas only covered “a portion of that two-month period.” The DOJ letter doesn’t go into more detail than that, citing the need to keep the investigation confidential. But recall that the government asked the AP to delay running the story on May 2, 2012, and that the AP held the story for a few days until publishing it on May 7, 2012. Given that the action here occurred at the beginning of a month, the fact that the records were obtained relating to calls during two calendar months doesn’t indicate that the records were collected over a long period of time. It might have been a week or two, or even less; we just don’t know. We only know that the start date was some time in the month of April and the end date was some time in the month of May.

It will be interesting to see if press coverage will correct that error from the initial coverage of the story, or if media reports will continue to say that two months of records were collected.

Here is the last installment before Mr. Abrams’s post. Thanks to Eugene for having me and thanks to all for the comments (critical ones included) from your readers. RC

“Our approach under the First Amendment has wisely, I think, generally been to risk suffering the harm that speech may do in order to avoid the greater harm that suppression of speech has often caused.” That line is vintage Floyd Abrams. So, too, is the following one: “The oldest reality about the First Amendment is this: Hardly anyone really believes that we should protect the speech of those with whom we differ.” In other words, protecting free speech can be risky and can mean protecting the expression of those who offend us.

As a First Amendment lawyer, Floyd Abrams has time and again urged courts to take risks and tolerate offensive expression. Consider, for example, his views on WikiLeaks and Julian Assange. On the one hand, he has been openly critical of “WikiLeaks’ persistent recklessness” in making public documents that could likely threaten lives or actually impair national security. Hence, he argued, the press should exercise a measure of critical judgment about what to print or not print. That is the judgment call of a responsible press.

Of course, such a press prerogative should not be confused with any carte blanche right of the government to censor speech absent compelling reasons. Or as Abrams put it: “None of this means that if WikiLeaks or Mr. Assange were brought to trial in this country that they would have no basis for claiming First Amendment protection. They would and should.”

If owing to his brand of absolutism Floyd Abrams is seen in some quarters as a First Amendment voluptuary (to invoke one of Professor Bickel’s favorite jabs), then his hardy criticisms of WikiLeaks may be seen in other quarters as signaling a retreat from such absolutism. But when pressed, Abrams denies this is the case, asserting that “if the government makes the ill-considered decision to charge Mr. Assange with a crime as a result of what he released or published, I would maintain that the First Amendment protected him. His acts were, in my view, reckless to the point of being dangerous but not to the point of depriving him of First Amendment protections.” (There is, to be sure, more to this story and more is told in my account in Nuanced Absolutism.)

By way of a somewhat related point: In 1980 Floyd Abrams and Antonin Scalia (then a Stanford law professor and former assistant attorney general in the Department of Justice’s Office of Legal Counsel) found themselves on different sides in the testimony they offered to Congress concerning the Intelligence Identities Protection Act.

And what about offensive speech? Here, too, Floyd Abrams has stepped on many delicate toes. In this regard, consider what Abrams had to say in a 1994 New York Times exchange with the noted feminist and anti-pornography activist Professor Catharine MacKinnon. “We need a First Amendment most of all to protect people who say very unpopular things, unpopular with government, unpopular with the public at large. We do not permit and should not permit the First Amendment to be overcome on the basis of some sort of continuous balancing, where we simply look at the supposed harm caused by speech as against the supposed value of what is said.”

There was a time when liberals proudly defended a bold measure of First Amendment freedom and conservatives firmly contested such efforts. But times have changed. As Abrams sees it: “I think there is a significant effort to restrict First Amendment values, if not legally defined First Amendment rights, which comes from the liberal community or the left-liberal community. Why is that so? It is human nature. People don’t like to permit speech of which they thoroughly disapprove, and liberals are no more able to disassociate themselves from trying to impose into law what they wish people would say than conservatives are.”

Much of today’s push back comes from the likes of liberal law professors who take stern exception to Floyd Abrams’s defense of First Amendment rights such as those vouchsafed in Citizens United v. Federal Election Commission (2010). Similarly, they voice outrage at his First Amendment defense of tobacco companies in cases such as R.J. Reynolds Tobacco Co. v. United States Food & Drug Administration, 696 F.3d 1205 (D.C. Cir. 2012).

Sometimes loved, sometimes reviled, Floyd Abrams has sought to buttress First Amendment freedoms as he understands them. Of course, in these modern times others have different understandings of the First Amendment and different ideas about freedom. But that does not deter him — he goes on to fight another day, to raise his constitutional lance anew. Abrams, ever amiable, relishes the give-and-take of a good argument. And as you will see in the next post about his new book, Friend of the Court: On the Front Lines with the First Amendment, Mr. Abrams is unlikely to change his calling card — “Have arguments, will travel.”

News here.

Media Matters raised some eyebrows when it issued talking points defending the Justice Department’s seizure of AP phone records.  After all, it seemed odd that an ostensibly liberal media watchdog would side with the government over the press.  So the Washington Post‘s Erik Wemple asked Media Matters for comment, prompting this reply from Media Matters David Brock:

Media Matters for America monitors, analyzes, and corrects conservative misinformation in the media and was not involved with the production of the document focusing on the DOJs investigation. That document was issued by “Message Matters,” a project of the Media Matters Action Network, which posts, through a different editorial process and to a different website, a wide range of potential messaging products for progressive talkers to win public debates with conservatives.

As a media watchdog organization, Media Matters for America recognizes that a free press is necessary for quality journalism and essential to our democracy. A healthy news media is what we fight for every day. Yesterday, 52 news organizations signed a letter to the Department of Justice expressing concerns that the DOJ’s broad subpoena of Associated Press reporters’ phone records runs counter to First Amendment principles and injures the practice of journalism. We stand with those news organizations and share their concerns.

Got that? Media Matters for America, the media watchdog organization, “stand[s] with those news organizations” criticizing the Justice Department’s actions and “share[s] their concerns.” But Media Matters Action Network, which describes itself as a “partner project” of Media Matters for America, is issuing talking points defending the Justice department against criticism from “those news organizations” in order to help “progressive talkers to win public debates with conservatives.” Got it? And, for what it’s worth, David Brock is the Chair of both organizations.

President Obama harshly condemned the apparent politicization of the IRS today and announced the resignation of Acting IRS Commissioner Steve Miller. From the Washington Post:

In a furious statement at the White House, Obama said the IRS’s actions were “inexcusable and Americans are right to be angry about it and I’m angry about it.” He added, “I will not tolerate this type of behavior in any agency but especially the IRS given the power it has and the reach it has.”

Obama said Miller was asked to resign because the agency needs new leadership while it faces a broad probe of its conduct. Obama also said he would seek to put in place new safeguards to prevent the targeting from happening again.

CNN reports some Administration sources are blaming the conduct on two “rogue” IRS employees. In the meantime, USA Today reports that progressive political groups seeking 501(c)(4) statussailed through the IRS review process as tea Party groups were stalled.

Improper political conduct at the IRS may not be all that new, according to James Bovard. In a WSJ op-ed he discusses past IRS misconduct and notes the agency’s history of avoiding careful scrutiny.

Sometimes Fortuna deals a hand that forever changes the arc of one’s life. And so it was when Floyd Abrams met a remarkable man from Romania.

After graduating from Cornell in 1956, Floyd Abrams ventured to New Haven to study law at Yale Law School, home of many renowned constitutional law scholars. Once there, Abrams was assigned (alphabetically) to a first-term constitutional law course with Professor Alex Bickel, who had just begun to teach at the law school. Abrams also had advanced courses in constitutional law from Thomas Emerson (a prominent First Amendment scholar), and Fred Rodell (a noted proponent of Legal Realism). But the one who left an indelible impression on him was the Romanian man — Alex Bickel.

Alexander Mordecai Bickel (1924-1974) taught at Yale Law School from 1956 until his death. A respected constitutionalist, Bickel had clerked for Justice Felix Frankfurter and had also prepared a historical memorandum in Brown v. Board of Education. Bickel’s immense influence on Abrams extended beyond the classroom and into the courtroom where, in later years, the two worked alongside one another in important First Amendment cases, this though some of their views on the general subject could be quite different. That said, and despite all his liberal and libertarian First Amendment credentials, there is a residue of Bickel moderation in Abrams, a cautious side leery of starry-eyed approaches to constitutional law.

“There are no absolutes that a complex society can live with in its law.” That was Bickel’s mantra. He was nothing if not categorical in his claim that treating “law as language . . . merely obscures the actual process of decision.” Even so, it is well to keep in mind what the Court declared in the Pentagon Papers Case (1971), the case that Professor Bickel argued (with young Abrams as co-counsel) on behalf of the New York Times and against the security claims advanced on behalf of the government by Solicitor General Erwin Griswold.

The near-absolutist rule announced by the majority was, most assuredly, one that erred more on the side of freedom. Said the Court: “‘Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’” Furthermore, “[t]he Government ‘thus carries a heavy burden of showing justification for the imposition of such a restraint.’” The point here is that the result obtained, though not couched in absolutist terms, was but a hair’s breadth away from such absolutism. And it was Bickel and Abrams who made that result possible.

What is also noteworthy about the Pentagon Papers Case is Justice William Brennan’s special concurrence in the case. Though Brennan was not an absolutist, his concurrence ratcheted up the kind and degree of proof the government must offer in order to make a bona fide case that our national security was actually at real risk. In this way his opinion certainly resonated with a kind of nuanced absolutism. That concurrence and the posture of the ruling in the case, maintained Abrams, “was breathtaking. To obtain ‘even the issuance of an interim restraining order’ the government was obliged to prove the publication ‘must inevitably, directly and immediately cause the occurrence of any event kindred to imperiling the safety of a transport already at sea.’” “Here we see,” adds Mr. Abrams, “a non-absolutist reading of First Amendment principles that affords virtually absolute protection.”

That same year the team of Bickel & Abrams filed an amicus brief on behalf of the New York Times in Branzburg v. Hayes (1972), the case in which the Court had to decide whether there was a First Amendment testimonial privilege for reporters who declined to testify before a grand jury. Though the Justices split 4-1-4 (with Byron White for the plurality, Lewis Powell concurring, and William O. Douglas in dissent), the views of the dissenters were far closer to those of Bickel and Abrams. Here again, the ever-cautious Bickel (aided by Abrams) took constitutional chances not otherwise characteristic of him.
Start there, with those two cases, and you will get a sense of the nuanced absolutism mindset that later informed so much of Abrams’s First Amendment thinking. Perhaps, the nuance is what he learned first and foremost from his beloved professor. As for the near-absolutist side of the equation, well, that is more Floyd Abrams’s addition to the constitutional mix.

Strange how life plays out . . . and how a foreign-born professor taught a young American something fundamental and lasting about freedom.

Attorney General Eric Holder recused himself from approving the AP subpoenas in the CIA operation leak case because he himself had been interviewed in the investigation. But at a press conference today, Holder defended the DOJ investigation on the ground that the nature of the leak required “very aggressive action.” Here’s what Holder said:

This was a very serious — a very serious leak, a very, very serious leak. I’ve been a prosecutor since 1976 and I have to say that this is among — if not the most serious, it is within the top two or three most serious leaks that I’ve ever seen. It put the American people at risk. And that is not hyperbole. It put the American people at risk. And trying to determine who was responsible for that, I think, required very aggressive action.

Why might Holder think that? Some will conclude that Holder is lying, and that as a result he doesn’t really think it’s true. But let’s revisit the May 7, 2012, Associated Press story that started the investigation. Here’s the most relevant excerpt:

The CIA thwarted an ambitious plot by al-Qaeda’s affiliate in Yemen to destroy a U.S.-bound airliner using a bomb with a sophisticated new design around the one-year anniversary of the killing of Osama bin Laden, The Associated Press has learned.

The plot involved an upgrade of the underwear bomb that failed to detonate aboard a jetliner over Detroit on Christmas 2009. This new bomb was also designed to be used in a passenger’s underwear, but this time al-Qaeda developed a more refined detonation system, U.S. officials said.

The FBI is examining the latest bomb to see whether it could have passed through airport security and brought down an airplane, officials said. They said the device did not contain metal, meaning it probably could have passed through an airport metal detector. But it was not clear whether new body scanners used in many airports would have detected it.

The would-be suicide bomber, based in Yemen, had not yet picked a target or bought a plane ticket when the CIA stepped in and seized the bomb, officials said. . . .

The AP learned about the thwarted plot last week but agreed to White House and CIA requests not to publish it immediately because the sensitive intelligence operation was still under way.

The AP story tells us three important things: 1) The CIA knew about the details of the plot during its planning stages; 2) The CIA not only interrupted the plot but actually took the bomb into its possession and then passed it off to the FBI; and 3) the CIA’s work was occurring as recently as a few days before the AP story was published on 5/7/2012.

Based on those three facts, it seems pretty likely that the CIA had people “on the inside” of Al Qaeda’s Yemen affiliate who took possession of the bomb. As covert agents, they would have covered up their removal of the bomb by making it seem like something else had happened. That matters, I think, because it means that the Al Qaeda affiliates in Yemen have a ready way to find the CIA plant(s). Just trace back what happened to the bomb, and specifically find the folks who claim to have seen it last and who came up with some story about what happened to it around the beginning of May. Chances are, that would bring you to the guys working for the CIA. And that discovery probably means no more CIA plants working on the inside the next time, which may take away the person(s) who otherwise could disrupt future plots or tip off U.S. authorities to a future attack.

Of course, we can’t be sure that this is the case. But a close read of the original AP story does suggest reasons why this would have been a particularly dangerous leak. And, if so, that may explain why AG Holder thinks that this leak justifies a “very aggressive” investigation.

UPDATE: Helpful comments point me to this New York Times story from May 8, 2012, that added considerably more details after the initial AP story was out:

The suicide bomber dispatched by the Yemen branch of Al Qaeda last month to blow up a United States-bound airliner was actually an intelligence agent for Saudi Arabia who infiltrated the terrorist group and volunteered for the mission, American and foreign officials said Tuesday.

In an extraordinary intelligence coup, the double agent left Yemen last month, traveling by way of the United Arab Emirates, and delivered both the innovative bomb designed for his aviation attack and inside information on the group’s leaders, locations, methods and plans to the Central Intelligence Agency, Saudi intelligence and allied foreign intelligence agencies.

Officials said the agent, whose identity they would not disclose, works for the Saudi intelligence service, which has cooperated closely with the C.I.A. for several years against the terrorist group in Yemen. He operated in Yemen with the full knowledge of the C.I.A. but not under its direct supervision, the officials said.

After spending weeks at the center of Al Qaeda’s most dangerous affiliate, the intelligence agent provided critical information that permitted the C.I.A. to direct the drone strike on Sunday that killed Fahd Mohammed Ahmed al-Quso, the group’s external operations director and a suspect in the bombing of the U.S.S. Cole, an American destroyer, in Yemen in 2000.

He also handed over the bomb, designed by the group’s top explosives expert to be undetectable at airport security checks, to the F.B.I., which is analyzing its properties at its laboratory at Quantico, Va. The agent is now safe in Saudi Arabia, officials said. The bombing plot was kept secret for weeks by the C.I.A. and other agencies because they feared retaliation against the agent and his family — not, as some commentators have suggested, because the Obama administration wanted to schedule an announcement of the foiled plot, American officials said.

Officials said Tuesday night that the risk to the agent and his relatives had now been “mitigated,” evidently by moving both him and his family to safe locations.

But American intelligence officials were angry about the disclosure of the Qaeda plot, first reported Monday by The Associated Press, which had held the story for several days at the request of the C.I.A. They feared the leak would discourage foreign intelligence services from cooperating with the United States on risky missions in the future, said Representative Peter T. King, a New York Republican and chairman of the House Homeland Security Committee.

“We are talking about compromising methods and sources and causing our partners to be leery about working with us,” said Mr. King, who spoke with reporters about the plot on Monday night and Tuesday after he was briefed by counterterrorism officials. Mr. King, who called the bomb plot “one of the most tightly held operations I’ve seen in my years in the House,” said he was told that government officials planned to investigate the source of the original leak. The C.I.A. declined to comment.

The added details complicate the picture somewhat, I think. On one hand, they suggest that the agent’s work may have been done and the information likely was going to become public at least to some extent at some point. On the other hand, the details add the complication about discouraging foreign intel services from working with the U.S., which is a concern that those with intel experience will be able to assess more accurately than I can.