The claimed legal basis for these actions is unknown, but the threats they pose to a free press and the newsgathering process are clear
May 14, 2013
Associated Press on Monday revealed that the Department of Justice (DOJ) "secretly obtained two months of telephone records of [its] reporters and editors", denouncing it as a "massive and unprecedented intrusion" into the news gathering process. In a letter sent yesterday to Attorney General Eric Holder, AP's President, Gary Pruitt, detailed that the phone records cover more than 20 telephone lines used by AP journalists, including their homes, offices and cell phones. He said the phones for which the DOJ obtained records also include ones at the AP bureaus in New York City, Washington DC, Hartford, and at the House of Representatives.
Pruitt wrote that "we regard this action by the Department of Justice as a serious interference with AP's constitutional rights to gather and report the news." He added that while AP is "evaluating its options", he "urgently request[ed]" that the DOJ "immediately return to the AP the telephone toll records" obtained by the DOJ "and destroy all copies." AP learned of the DOJ's acquisition of these records only after the fact, and thus had no opportunity to raise legal and constitutional objections nor attempt to negotiate to narrow the scope of the records to be sought. Pruitt's letter uses some inflammatory language as it is designed to advance the AP's case and to generate public anger, but that's entirely appropriate. The phone records reveal, at a minimum, all of the telephone numbers called by those AP journalists over the course of two months.
The ACLU last night condemned the DOJ's acts as "press intimidation" and said it constitutes "an unacceptable abuse of power". The Electronic Frontier Foundation denounced it as "a terrible blow against the freedom of the press and the ability of reporters to investigate and report the news". The New York Times' Editorial Page Editor Andy Rosenthal called the DOJ's actions "outrageous" while Washington Post Executive Editor Marty Baron said they were "shocking" and "disturbing". Even Democratic Sen. Pat Leahy, chairman of the Senate Judiciary Committee, said: "I am very troubled by these allegations and want to hear the government's explanation."
Numerous media reports convincingly speculated that the DOJ's actions arise out of a 2012 AP article that contained leaked information about CIA activity in Yemen, and the DOJ is motivated, in part, by a desire to uncover the identity of AP's sources. That 2012 AP story revealed that the CIA was able to "thwart" a planned bombing by the al-Qaida "affiliate" in that country of a US jetliner. AP had learned of the CIA actions a week earlier but "agreed to White House and CIA requests not to publish it immediately because the sensitive intelligence operation was still under way." AP revealed little that the US government itself was not planning to reveal and that would not have been obvious once the plot was successfully thwarted, as it explained in its story: "once those concerns were allayed, the AP decided to disclose the plot Monday despite requests from the Obama administration to wait for an official announcement Tuesday."
The legality of the DOJ's actions is impossible to assess because it is not even known what legal authority it claims nor the legal process it invoked to obtain these records. Particularly in the post-9/11 era, the DOJ's power to obtain phone records is, as I've detailed many times, dangerously broad. It often has the power to obtain those records without the person's knowledge (as happened here) and for a wildly broad scope of time (as also happened here). There are numerous instruments that have been vested in the DOJ to obtain phone records, many of which do not require court approval, including administrative subpoenas and "national security letters" (issued without judicial review); indeed, the Obama DOJ has previously claimed it has the power to obtain journalists' phone records without subpoeans using NSLs, and in its relentless pursuit to learn the identity of the source for one of New York Times' James Risen's stories, the Obama DOJ has actually claimed that journalists have no shield protections whatsoever in the national security context. It's also quite possible that they obtained the records through a Grand Jury subpoena, as part of yet another criminal investigation to uncover and punish leakers.
None of those processes for obtaining these invasive records requires a demonstration of probable cause or anything close to it. Instead, the DOJ must simply assert that the records "relate to" a pending investigation: a standard so broad that virtually every DOJ desire will fulfill it. Even if a court were involved in the acquisition of these records - and that's unlikely here - it typically does little more than act as rubber-stamping functionary, just as it does when secretly approving the DOJ's requests for FISA warrants. This is what is reaped from continuously vesting the US government with greater and greater surveillance powers in the name of Terrorism and other fears.
There has long been concern about the DOJ's snooping into the communications which journalists have with their sources precisely because the DOJ's power to obtain phone data and other sensitive records in secret is now so sweeping. Attempts to enact legislation to protect journalists from this type of concealed investigative intrusion into their source communications have been defeated in part due to the DOJ's insistence that it exercises this power responsibly and only in the most extreme cases.
Indeed, the DOJ has adopted its own binding regulations that impose constraints on its ability to obtain the phone records of journalists. Those regulations require that "all reasonable attempts should be made to obtain information from alternative sources" before subpoeans are issued; that "negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated" unless the DOJ determines that such negotiations would "pose a substantial threat to the integrity of the investigation in connection with which the records are sought"; and that "no subpoena may be issued . . . for the telephone toll records of any member of the news media without the express authorization of the Attorney General". The White House has denied involvement in the acquisition of AP's phone records, but presumably, Attorney General Eric Holder personally approved (Esquire's Charles Pierce, in calling for the resignation of Holder, expresses skepticism about White House denials, but I'm neutral at this point on that specific question).
What makes the DOJ's actions so stunning here is its breadth. It's the opposite of a narrowly tailored and limited scope. It's a massive, sweeping, boundless invasion which enables the US government to learn the identity of every person whom multiple AP journalists and editors have called for a two-month period. Some of the AP journalists involved in the Yemen/CIA story and whose phone records were presumably obtained - including Adam Goldman and Matt Apuzzo - are among the nation's best and most serious investigative journalists; those two won the Pulitzer Prize last year for their superb work exposing the NYPD's surveillance program aimed at American Muslim communities. For the DOJ to obtain all of their phone records and those of their editors for a period of two months is just staggering.
It's the very opposite of what the DOJ has long claimed its guidelines protect. EFF details how the DOJ's actions "violated its own regulations for subpoenas to the news media." AP's Pruitt explained:
The key point is that all of this takes place in the ongoing War on Whistleblowers waged by the Obama administration. If you talk to any real investigative journalist, they will tell you that an unprecedented climate of fear has emerged in which their sources are petrified to talk to them. That the Obama administration has prosecuted double the number of whistleblowers under espionage statutes as all previous administrations combined has already severely chilled the news gathering process. Imagine what message this latest behavior sends to journalists and their sources: that at any moment, the phone records of even the nation's most establishment journalists can be secretly obtained by the DOJ, which has no compunction about doing so even in the most extreme and invasive manner.
The all-too-familiar axis that has enabled massive civil liberties assaults by the Obama administration - blindly partisan progressive media outlets and particularly obsequious self-styled neutral journalists - instantly sprung into action here and wasted no time jumping to the defense of the US government. TPM's Josh Marshall, while saying "there's still a very live question of whether this was a prudent action on the part of the DOJ", actually published an anonymous letter depicting the Obama DOJ as the victim here, saying AP "seeks to smear Justice" (in the annals of lowly journalistic behavior, printing anonymous emails defending the US government's surveillance actions and attacking targeted journalists is way down in the sewer, but that's the government-defending Josh Marshall in the Age of Obama). Similarly: before most people had even learned of the story, Think Progress purported to explain "Why The Department Of Justice Is Going After The Associated Press' Records" and, of course, offered the most benign and generous interpretation possible: they only did it to find out who is responsible for an "unauthorized and dangerous disclosure of classified information", quoting CIA Director John Brennan (offering instant "explainers" for even the most dubious of Obama administration actions is its typical tactic).
Some progressives actually tried to blame Republicans for the Obama DOJ's conduct because the GOP largely voted against the codification of some added protections for journalists from DOJ record-gathering in a proposed "shield law". But Obama, who supported those protections when he was in the Senate, "reversed course" when he was president - that could easily be the motto of his presidency - and it was his opposition that helped kill that bill.
Meanwhile, CNN's Wolf Blitzer, showing off the tough adversarial journalistic spirit for which he's so rightly celebrated, actually went on the air and said this:
Although if you look it from the other side, if there was a serious leak about an al-Qaida operation or whatever, they're trying to find out who may be leaking this information to the news media, do they occasionally have the right to secretly monitor our phone calls?"
Can you imagine what it's like to be an Obama official and - in the wake of these revelations - sit back and watch one of the nation's most celebrated journalists instantly suggest that the perhaps the US government should be monitoring his phone calls with his sources? Or watch progressives who spent the Bush years shrieking and convulsing at every story of secret Bush surveillance actions instantly attempt to justify what you've done before you've even done so yourself? And can you imagine the personality attributes that cause someone to read a story about a massive intrusion into journalists' communications with their sources and have your first instinct be to attack the targeted journalists and defend the US government?
That is why this is permitted to happen. During the Bush years, there were several similar reports of DOJ acquisition of journalists' phone records: I'll wager anything that not a single progressive site or prominent Democrat ever defended any of that or offered neutral "explainers" to provide justifying rationale. And it's hard to express how lame the justifying rationale is. The Obama administration does not mind leaks of classified national security information; to the contrary, they love such leaks and are the most prolific exploiters of them. What they dislike are leaks that they don't approve and/or which don't glorify the president. Their unprecedented attacks on whistleblowers ensures that only the White House but nobody else can disclose classified information to the public, which is another way of saying that they seek to seize the ultimate propaganda model whereby the president and he alone controls the flow of information to the public. That's what their very selective and self-serving war on leaks achieves.
It is true, as Kevin Drum suggests, that the DOJ has been obtaining phone records for quite some time in this manner, and that the angry reactions to this story are accounted for by the fact that, in this case, the targets are establishment journalists rather than marginalized Muslims or dissident groups. But there are unique dangers from having the government intrude into journalists' communications with their sources, which is what happens when they obtain their phone records in such a sweeping manner. At this point, leaks from government sources are the primary way we learn about what the government does, and the more that process is targeted and the more those involved are intimidated, the less it will happen. That, of course, is the point.
Despite how stunning the breadth of this invasion is, none of it is really surprising. But it does underscore just how extreme of a climate of fear has been deliberately imposed by the Obama administration on the news gathering process. As the New Yorker's Jane Mayer told whistleblower advocate Jesselyn Radack last year:
"When our sources are prosecuted, the news-gathering process is criminalized, so it's incumbent upon all journalists to speak up."
What the Obama DOJ is doing in all of these cases is not just an attack on investigative journalists and their sources, though it is that. It is, first and foremost, an attack on you: specifically on your ability to know what government officials are doing in the dark.
Using a great new tool developed by the Guardian, I'll be hosting a Q-and-A session tomorrow in this column, from 2:00 to 4:00 pm EST, to discuss this story and others I've written about over the past few weeks. You can leave your questions here.
In a very timely development, the filmmaker Robert Greenwald (no relation) is about to release his outstanding documentary "War on Whistleblowers", detailing the Obama administration's targeting of whistleblowers. I'm briefly interviewed for it, as are numerous investigative journalists, news executives, and others. The trailer can be seen here:
Holder today said that he recused himself from the AP investigation early on, citing the fact that he himself had been interviewed by the FBI about the leaks. As a result, he said, it was the Deputy Attorney General, James Cole, who signed off on the acquisition of the AP phone records.
Meanwhile, the Reporters Committee for Freedom of the Press wrote a scathing letter to Holder today about these actions, explaining:
"In the thirty years since the Department issued guidelines governing its subpoena practice as it relates to phone records from journalists, none of us can remember an instance where such an overreaching dragnet for news gathering materials was deployed by the Department, particularly without notice to the affected reporters or an opportunity to seek judicial review.
"The scope of this action calls into question the very integrity of Department of Justice policies toward the press and its ability to balance, on its own, its police powers against the First Amendment rights of the news media and the public's interest in reporting on all manner of government conduct, including matters touching on national security which lie at the heart of this case."
As for Holder, he - needless to say - claimed that this investigation was necessary for "national security"; AP's president responds to that assertion here.