Department of Justice Subpoenas AP Phone Records in Leak Investigation

Yesterday, the AP published a story reporting that the US Justice Department had subpoenaed "two months of telephone records of reporters and editors for The Associated Press."

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

The government would not disclose why it had sought the records, although the subpoena is presumed to have been part of an investigation into a leak about a foiled Yemeni terror plot.

The defense of the subpoena is a familiar one, to anyone who was paying attention during the Bush administration: National security was put at risk by the reporting—

AP learned of the plot a week before publishing, but "agreed to White House and CIA requests not to publish it immediately" due to national security concerns. But, by reporting the CIA's involvement in foiling the plot, they put AQAP on notice that the CIA had a window into their activities. The AP's reporting also led to other stories involving an operative in place within AQAP, and details of the operations he was involved in. That operative, it was feared, would be exposed and targeted by AQAP as retribution for siding with the United States.

—so the government is investigating the leak and subpoenaed the records only as a last resort:

Regulations, [Bill Williams, a spokesman in the D.C. U.S. Attorney's Office] stated, require DOJ to make "every reasonable effort" to obtain information another way before considering subpoenaing reporter phone records.

...Matthew Miller, a former top spokesman for [Attorney General Eric Holder], also defended DOJ's actions noting that the alternative option would have been to subpoena reporters themselves and ask for the identity of their sources, a tactic that would have been almost assuredly rejected by the AP.

"This is how leaks get investigated," said Miller. "Leaking classified information is a crime, and there are usually only two parties who know who committed the crime, the leaker and the reporter. Getting access to phone records allows investigators to see who the possible source might have been and confront them with evidence of a crime."

Naturally, we are required to take the DOJ at their word that every other conceivable measure was exhausted before they obtained the AP's phone records.

The criticism of the subpoena is that it is an infringement on the freedom of the press, that subpoenaing records of journalists impedes their ability to function effectively, that it is an intimidation tactic which will discourage anonymous sources and whistleblowers from working with media. That is obviously a huge concern for those of us who are interested in government accountability.

Laura W. Murphy, director of the American Civil Liberties Union's Washington Legislative Office put it bluntly in a press release: "The media's purpose is to keep the public informed and it should be free to do so without the threat of unwarranted surveillance. The Attorney General must explain the Justice Department's actions to the public so that we can make sure this kind of press intimidation does not happen again."

Of course, this sort of surveillance under the guise of "keeping America safe" has been happening for quite some time. As Kevin Drum observes:

The government has been obtaining phone records like this for over a decade now, and it's been keeping their requests secret that entire time. Until now, the press has showed only sporadic interest in this. But not anymore. I expect media interest in terror-related pen register warrants to show a healthy spike this week.

That could be a good thing. It's just too bad that it took monitoring of journalists to get journalists fired up about this.

Which is absolutely right. Although I will also note that intimidation of the press, and impeding its ability to hold government accountable, is a special sort of fuckery. Nothing makes that more evident than this reality: Despite the potential conflict of interest, the fact is, if the AP hadn't written about it, we wouldn't know.