MB Obama Spied on The Associated Press
The Obama administration, which has a chilling zeal for investigating leaks and prosecuting leakers, has failed to offer a credible justification for secretly combing through the phone records of reporters and editors at The Associated Press in what looks like a fishing expedition for sources and an effort to frighten off whistle-blowers.
On Friday, Justice Department officials revealed that they had been going through The A.P.’s records for months. The dragnet covered work, home and cellphone records used by almost 100 people at one of the oldest and most reputable news organizations. James Cole, a deputy attorney general, offered no further explanation on Tuesday, saying only that it was part of a “criminal investigation involving highly classified material” from early 2012.
Attorney General Eric Holder Jr. said he could not comment on the details of the phone records seizure, which he said was an open investigation — although he was happy to comment on the open investigation into the tax audits of conservative groups, which he said might have been criminal and were “certainly outrageous and unacceptable.”
Both Mr. Holder and Mr. Cole declared their commitment — and that of President Obama — to press freedoms. Mr. Cole said the administration does not “take lightly” such secretive trolling through media records.
We are not convinced. For more than 30 years, the news media and the government have used a well-honed system to balance the government’s need to pursue criminals or national security breaches with the media’s constitutional right to inform the public. This action against The A.P., as the Reporters Committee for Freedom of the Press outlined in a letter to Mr. Holder, “calls into question the very integrity” of the administration’s policy toward the press.
The records covered 20 phone lines, including main office phones in New York City, Washington, Hartford, and the Congressional press gallery. The guidelines for such subpoenas, first enacted in 1972, require that requests for media information be narrow. The reporters’ committee said this action is so broad that it allowed prosecutors to “plunder two months of news-gathering materials to seek information that might interest them.”
Mr. Holder said the leak under scrutiny, believed to be about the foiling of a terrorist plot in Yemen a year ago, “put the American people at risk,” although he did not say how, and the records sweep went far beyond any one news article. Gary Pruitt, the president of The A.P., said two months’ worth of records could provide a “road map” to its whole news-gathering operation.
Under the guidelines, the administration should have sought information from other sources. Mr. Cole said it did. But the administration made the troubling and discrediting decision not to inform The A.P. in advance. The guidelines require investigators to provide notice unless it would “pose a substantial threat to the integrity of the investigation.” That is intended to prevent destruction of evidence, an impossibility in this case.
The Obama administration has indicted six current and former officials under the Espionage Act, which had previously been used only three times since it was enacted in 1917. One, a former C.I.A. officer, pleaded guilty under another law for revealing the name of an agent who participated in the torture of a terrorist suspect. Meanwhile, President Obama decided not to investigate, much less prosecute, anyone who actually did the torturing.
The Justice Department is pursuing at least two major press investigations, including one believed to be focused on David Sanger’s reporting in a book and in The Times on an American-Israeli effort to sabotage Iranian nuclear works. These tactics will not scare us off, or The A.P., but they could reveal sources on other stories and frighten confidential contacts vital to coverage of government.
Justice Dept. Defends Seizure of Phone Records
WASHINGTON — Attorney General Eric H. Holder Jr. on Tuesday defended the Justice Department’s sweeping seizure of telephone records of Associated Press journalists, describing the article by The A.P. that prompted a criminal investigation as among “the top two or three most serious leaks that I’ve ever seen” in a 35-year career.
“It put the American people at risk, and that is not hyperbole,” he said in an apparent reference to an article on May 7, 2012, that disclosed the foiling of a terrorist plot by Al Qaeda’s branch in Yemen to bomb an airliner. “And trying to determine who was responsible for that, I think, required very aggressive action.”
In a statement in response, The A.P.’s president and chief executive, Gary Pruitt, disputed that the publication of the article endangered security.
“We held that story until the government assured us that the national security concerns had passed,” he said. “Indeed, the White House was preparing to publicly announce that the bomb plot had been foiled.” Mr. Pruitt said the article was important in part because it refuted White House claims that there had been no Qaeda plots around the first anniversary of the killing of Osama bin Laden.
At a news conference at the Justice Department, Mr. Holder also disclosed that he recused himself last year from overseeing the case after F.B.I. agents interviewed him as part of their investigation. His deputy, James M. Cole, approved the subpoena seeking call records for 20 office and personal phone lines of A.P. reporters and editors.
Mr. Pruitt disclosed the seizure of the phone records on Monday in a letter to Mr. Holder protesting the action as overly broad and “a serious interference with A.P.’s constitutional rights to gather and report the news.”
But in a letter to The A.P. on Tuesday, Mr. Cole portrayed the search as justified and disputed a detail in the wire service’s account of the Justice Department action. While the news organization had said that records from “a full two-month period” had been taken, Mr. Cole said that the seizure covered only “a portion” of two calendar months.
“We understand your position that these subpoenas should have been more narrowly drawn, but in fact, consistent with Department policy, the subpoenas were limited in both time and scope,” he wrote. He added that “there was a basis to believe the numbers were associated with A.P. personnel involved in the reporting of classified information. The subpoenas were limited to a reasonable period of time and did not seek the content of any calls.”
The dispute centered on an ambiguous description in the original notice to The A.P., which an employee of the news organization said was sent as an attachment to an e-mail on May 10 from Jonathan M. Malis, a federal prosecutor, to several A.P. employees.
The attached letter, the employee said, consisted of a single sentence citing the Justice Department regulation for obtaining journalists’ telephone records, and saying that The A.P. “is hereby notified that the United States Department of Justice has received toll records from April and May 2012 in response to subpoenas issued” for 20 phone numbers in five area codes and three states.
The regulation requires subpoenas for reporters’ tolling records — logs of calls made and received — to be narrowly focused and undertaken only after other ways of obtaining information are exhausted. Under normal circumstances, news organizations are to be notified ahead of time so they can negotiate or ask a judge to quash the subpoena, but the regulation allows exceptions, in which case journalists must be notified no later than 90 days afterward.
Mr. Cole said the department had undertaken “a comprehensive investigation” before seeking the phone records, including more than 550 interviews and a review of “tens of thousands of documents.” The calling records, he added, “have been closely held and reviewed solely for the purposes of this ongoing criminal investigation” and would not be used in any other case.
The A.P. on Tuesday was still examining whether any telephone companies had tried to challenge the subpoena on its behalf before cooperating. But at least two of the journalists’ personal cellphone records were provided to the government by Verizon Wireless without any attempt to obtain permission to tell them so the reporters could ask a court to quash the subpoena, the employee said. Debra Lewis, a Verizon Wireless spokeswoman, said the company “complies with legal processes for requests for information by law enforcement,” but would not comment on any specific case.
Lucy Dalglish, dean of the journalism school at the University of Maryland, criticized the Justice Department’s broad seizure of phone records, saying it would chill the ability of reporters to report the news. The subpoena came against the backdrop of six prosecutions of officials in leak-related cases under President Obama — twice the number prosecuted under all previous presidents combined.
“The message is loud and clear that if you work for the federal government and talk to a reporter that we will find you,” she said.
Jay Carney, a White House spokesman, on Tuesday reiterated that the White House had no involvement in the subpoena and portrayed Mr. Obama as “a strong defender of the First Amendment and a firm believer in the need for the press to be unfettered in its ability to conduct investigative reporting and facilitate a free flow of information.”
Justice Department regulations do not cover information about journalists’ e-mails. But the A.P. employee said the company operates its own internal e-mail server and had determined that the e-mails were not subpoenaed and no one at The A.P. had supplied information about them to the government.
One unanswered question is why investigators seized phone logs for The A.P.’s bureau in Hartford in addition to its New York and Washington offices. One of the reporters who worked on the bomb plot article, Matt Apuzzo, formerly worked in Hartford but moved to another bureau in 2005.
The leak investigation involving The A.P. is being run by Ronald C. Machen Jr., the United States attorney for the District of Columbia. In June, amid a Congressional uproar over disclosures in the news media of national security information, Mr. Holder assigned Mr. Machen and his counterpart in Maryland to lead two leak investigations.
The other investigation is believed to be focusing on disclosures made by David E. Sanger, a New York Times journalist, in a book and in articles in The Times about a joint American-Israeli effort to sabotage Iranian nuclear centrifuges with computer viruses. The Justice Department has declined to say whether it has issued a similar subpoena in that case, and Mr. Holder would not say on Tuesday if he is also recused from that investigation.
The May 2012 A.P. article disclosed that the Central Intelligence Agency had foiled a plot by the Qaeda branch in Yemen to destroy an airliner using an underwear bomb the government by then had in its possession. The next day, The Los Angeles Times and several other news organizations, including The New York Times, reported that the intended attacker had been a double agent.
By then, officials said, the double agent, who had reported to British, Saudi and American intelligence, had left Yemen and was not in danger. But both American and foreign intelligence officials were furious at the disclosures, which they said alerted terrorists prematurely that the plot was compromised and might discourage potential agents from working against Al Qaeda.