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Justice Department Secretly Subpoenas Associated Press Phone Records

On May 10, 2013, the Department of Justice (DOJ) notified the Associated Press (AP) that telephone records listing incoming and outgoing numbers of individual AP reporters, the general AP office numbers in New York, Washington, D.C., and Hartford, Conn., and the main number for AP reporters in the House of Representatives press gallery, had been obtained from the AP’s telephone providers. “In all,” the AP reported, “the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May 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 AP reported that the government did not explain the reason for the subpoena, but the wire service speculated that the government may be seeking the sources for a May 7, 2012 AP story written by reporters Matt Apuzzo and Adam Goldman, with contributions from reporters Kimberly Dozier, Eileen Sullivan and Alan Fram, working with editor Ted Bridis. Their April and May 2012 phone records were among the records subpoenaed by the government. The story was about CIA efforts in Yemen to stop an al-Qaida plot to bomb an airliner bound for the United States. According to a May 16, 2013 story in the Los Angeles Times, the CIA’s operation included a double agent who allegedly offered to be a suicide bomber, but once he received the bomb, turned it over to the FBI. The agency had hoped the double agent would have been able to gain access to other members of al-Qaida, such as Ibrahim al-Ashiri, noted for his ability to build bombs. The double agent had provided additional information that had been instrumental in another operation: a U.S. drone strike that killed senior al-Qaida leader Fahd Mohammed Ahmed al-Quso in May 2012, according to National Public Radio (NPR). But the May 2012 AP story made any further activity by the double agent impossible, according to a May 17, 2013 story in The Seattle Times

On May 14, 2013, AP President and CEO Gary Pruitt issued a statement saying that the May 2012 story had been held “until the government assured us that the national security concerns had passed.” The AP decided to publish the story after the White House released a statement in May 2012 that there was no further threat of an airliner attack by al-Qaida at that time, Pruitt said. The story contained “important information and the public deserved to know it,” Pruitt added. 

The AP did not receive advance notice of the DOJ’s subpoena. According to the U.S. Attorney General’s guidelines, 28 C.F.R. §50.10, the government must notify news organizations before subpoenas for phone records are issued, giving the news organization the opportunity to contest the subpoena and to protect itself from any surveillance that might impair its newsgathering functions. (For additional information about the Guidelines, see “Silha Bulletin Guide to Journalists’ Privilege” in the Spring 2008 issue of the Silha Bulletin.) However, the DOJ relied on an exemption to the guidelines, informing the AP in its May 10, 2013 notification to the news agency that “prior notification can be waived if such notice … might ‘pose a substantial threat to the integrity of the investigation.’” The New York Times reported that as of May 15, the AP was still trying to determine whether any phone companies had tried to contact the news agency before complying with the subpoenas. A spokesperson for Verizon Wireless, Debra Lewis, was quoted in The New York Times, saying the company “complies with legal processes for requests for information by law enforcement,” but did not elaborate further.

In a May 13, 2013 letter to Attorney General Eric Holder, Pruitt claimed the “sheer volume” of the Justice Department’s request was overbroad. Pruitt wrote that the information the government sought was “far beyond anything that could be justified by any specific investigation,” and “there can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.” Pruitt added, “We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.” Pruitt further “demanded the return of the phone records and destruction of all copies.” 

The decision to subpoena the AP’s records was made by Deputy Attorney General James Cole at the request of U.S. attorney for the District of Columbia, Ronald Machen, who is conducting the criminal investigation into who may have leaked information about the double agent to the AP. According to a May 15, 2013 article in The Wall Street Journal, Attorney General Eric Holder had recused himself from the investigation because he was interviewed by the FBI in connection with the probe, and had “frequent contact with the media,” according to a May 14, 2013 story in USA Today. Because Holder had recused himself, it was Cole who requested the AP’s phone records. Nevertheless, Holder defended the DOJ’s action while answering questions at a press conference on May 14, contending the information in the AP article was “if not the most serious, in the top two or three most serious leaks that I’ve ever seen. It puts the American people at risk, and that is not hyperbole. … Trying to determine who was responsible for [the leak] I think required very aggressive action.” The Justice Department later released a letter written by Cole stating that the records had been obtained only after other avenues had been exhausted, including, according to The New York Times, over 550 interviews and a review of “tens of thousands” of documents. Cole also stated that the subpoenas had not sought the content of the phone calls, adding that the AP records “will not be provided for use in any other investigations.” Cole’s letter is available online at http://www.scribd.com/doc/141466506/Justice-Department-letter-to-the-Associated-Press.

Pruitt replied that Holder’s and Cole’s response did not address why notifying the AP in advance would have compromised the investigation, and what, exactly, the government is investigating. Pruitt’s letters from May 13 and 14 are available online at http://blog.ap.org/2013/05/13/ap-responds-to-intrusive-doj-seizure-of-journalists-phone-records/.

First Amendment advocates have criticized the DOJ’s seizure of the AP’s phone records. Floyd Abrams, one of the attorneys who represented The New York Times in the Pentagon Papers case (New York Times v. United States, 403 U.S. 713 (1971)), told The Daily Beast, that the seizure was “an egregious overreaction. Why couldn’t [the DOJ] put this issue before a judge? What they have done is foreclose any meaningful response by the AP. This isn’t just seeking a record of one journalist for one day. This is breaking and entering into the heart of the journalistic process of the Associated Press.” 

On May 19, 2013, the Washington Post reported that David Schulz, a partner with the law firm of Levine, Sullivan, Koch & Schulz, who represents the AP, said he is working with the news agency to “review our ability” to take countermeasures, even though the records were obtained by the government over two months ago. “[The] government acted as judge, jury, and executioner,” Schulz said. “We’re either going to have to go to court or we’re going to have to have the Justice Department acknowledge problems or have Congress step in [to ensure the passage of a federal shield law.] We’re not going to go away.” However, Schulz acknowledged that the chances of success are “not all good,” citing the federal appeals court decision in New York Times v. Gonzales, 459 F.3d 160 (2d Cir. 2006). In that case, the U.S. Court of Appeals for the Second Circuit decided that the government could subpoena reporters’ phone records concerning stories about Islamic charities that were written in the wake of the Sept. 11, 2001 attacks. (For more about the Gonzales case, see “Reporter’s Privilege News: Supreme Court Rejects New York Times’ Motion to Block Access to Reporters’ Phone Records in Leak Investigation” in the Winter 2007 issue of the Silha Bulletin.)

The DOJ’s apparent failure to comply with the Attorney General’s guidelines also prompted outrage from many news organizations. More than 50 media groups, including ABC, Inc., American Society of News Editors, Cable News Network, Inc., The New York Times Company, NPR, Inc., POLITICO LLC, Reporters without Borders, and the Society of Professional Journalists, joined a letter to Holder and Cole prepared by the Reporters Committee for Freedom of the Press (RCFP), stating that the DOJ “appears to have ignored or brushed aside almost every aspect of the guidelines.” Specifically, the news organizations argued, the DOJ had an obligation to inform and negotiate with the AP before beginning the investigation. Instead, it issued a subpoena that was overbroad and that should have been limited to relevant records within a short time period, rather than “an initial investigative step taken as part of a prosecutor’s desire to gather up even the most remote material when beginning an investigation.” The DOJ should have first sought the information from alternative sources, the letter continued, and should have obtained the approval of the Attorney General in advance, which would have minimized the possibility that “abusive practices would undermine the sensitive relationship between journalists and their sources, and between the press and the government.” The letter is available online at http://apps.washingtonpost.com/g/page/politics/media-coalition-letter-of-protest-to-attorney-general-eric-holder/148/.

When asked at a press conference on May 15, 2013 about the possibility of enacting a federal shield law that might have blocked the subpoena, President Barack Obama cited national security concerns, but acknowledged that there is a “flip side.” “[W]e also live in a democracy where a free press, free expression, and the open flow of information helps hold me accountable, helps hold our government accountable, and helps our democracy function.” He added that, “[T]he whole goal of this media shield law … was finding a way to strike that balance appropriately. … I think now is the time for us to go ahead and revisit that legislation. I think that’s a worthy conversation to have, and I think that’s important.” Bloomberg Businessweek reported that Sen. Charles Schumer (D-NY) has been asked by presidential staff to reintroduce the 2009 shield legislation he co-sponsored. (For additional information about attempts to pass a federal shield law, see “Journalist Subpoenas and Shield Laws: Shield Law Bills Introduced Again in U.S. House and Senate” in the Winter 2009 issue of the Silha Bulletin, “Reporter Shield Law Update: Utah High Court Creates Privilege; Hawaii Considers Bill; Federal Effort Slow” in the Winter 2008 issue, and “Reporters Privilege News: Federal Shield Law Introduced in 109th Congress” in the Winter 2005 issue.)

If a federal shield law like those proposed previously had been in place when the DOJ subpoenaed the AP’s phone records, a judge, not a DOJ official, would have decided whether the advance notification to the news agency would have posed a substantial threat to the investigation. “The difference is that instead of DOJ unilaterally making that determination, the department would have to convince a judge that this was the case,” Jane E. Kirtley, Silha Center Director and Silha Professor for Media Ethics and Law told the Washington Post in a May 15, 2013 interview. 

But even if the proposed bill had been enacted, it would have contained exemptions for disclosures threatening national security. Trevor Timm, co-founder and the executive director of the Freedom of the Press Foundation, wrote in a May 16, 2013 posting on the organization’s website that a similar bill will not help in situations like the AP’s because “virtually the only time the government subpoenas reporters, it involves leak investigations into stories by national security reporters. So it’s hard to see how this bill will significantly help improve press freedom.” 

Whether or not a federal shield law is enacted, this latest incident with the AP’s phone records is yet another example of the Obama administration’s record of pursuing and prosecuting those who leak information to the press. A June 20, 2012 New York Times story stated that Obama has “twice as many such cases than all previous presidential administrations combined.” These actions have raised comparisons between the Obama administration and that of Nixon. Kirtley told the Pittsburgh Tribune-Review in a May 14, 2013 article, “I’m aghast to see how relentlessly this administration and the Justice Department have been pursuing leaks.” (For additional information on the Obama administration’s pursuit of leakers, see “U.S. Supreme Court Rejects Challenge to Federal Surveillance Law” on page 14 of this issue of the Silha Bulletin, and “Manning, Kiriakou Face Punishment for Blowing the Whistle on the War on Terror” on page 17.) The Silha Center has published numerous stories about phone record subpoenas in the context of leak investigations. See “Federal Court Rulings Differ on Branzburg Interpretation, Reporter’s Privilege” in the Summer 2012 issue of the Silha Bulletin; “Judges Rebuke Government on Leak Prosecution” in the Summer 2011 issue; “Subpoenas and Reporters Privilege News: Reporters Fight Federal Subpoenas: Locy Faces Fines, Risen Subpoenaed over Sources for CIA Book” in the Winter 2008 issue; “Government Interference with the Media: Reporters Monitored at Home and Abroad” in the Spring 2006 issue; “Reporters Privilege News: Reporters’ Telephone Records Protected from Compelled Disclosure” in the Winter 2005 issue;  “Reporters Privilege In re: Special Counsel Investigation” in the Summer 2004 issue; and “Journalists’ Records Subpoenaed in Separate Cases” in the Fall 2001 issue.

This was a developing story as the Bulletin went to press.  We will continue to monitor further events as they unfold.

– Elaine Hargrove
Silha Center Staff