NEW YORK –- The Associated Press revealed Monday that the Justice Department secretly obtained two months of reporter and editor phone records from the spring of 2012, the latest and most illustrative example of the Obama administration's unprecedented war on leaks.
AP president and chief executive officer Gary Pruitt wrote in a letter to Attorney General Eric Holder on Monday that "there can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters." Pruitt demanded the DOJ return the records and destroy any copies.
The AP reported that the DOJ obtained lists of "incoming and outgoing calls, and the duration of each call, for the work and personal phone numbers of individual reporters, general AP office numbers in New York, Washington and Hartford, Conn., and the main number for AP reporters in the House of Representatives press gallery." The Justice Department seized records for more than 20 telephone lines from April and May 2012.
Despite the seizure of the phone records, a Justice Department spokesman said the agency valued freedom of the press and was “always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.”
Though DOJ did not give the AP a specific reason for the seizure, the dates of the phone calls it targeted offered a clear tell. On May 7, 2012, AP reporters Adam Goldman and Matt Apuzzo, citing anonymous sources, reported that the CIA had thwarted a plot by an al-Qaeda affiliate 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 AP acknowledged then that it had agreed with the White House and CIA requests "not to publish" its story "immediately because the sensitive intelligence operation was still under way." But "once officials said those concerns were allayed," the news organization went ahead with its story rather than wait for the Obama administration's official announcement.
It was later revealed that the "would-be bomber" was actually a U.S. spy planted in the Yemen-based group Al Qaeda in the Arabian Peninsula. On May 18, U.S. and allied officials suggested to Reuters that the leak to the AP had forced the end of an "operation which they hoped could have continued for weeks or longer."
In the months since those revelations, the Justice Department pushed hard to uncover the source of the leak, driven in part by demands from Republican lawmakers it had endangered national security. The DOJ's campaign was heavily criticized by members of the media, who warned that it would have a chilling effect on the source-reporter relationship, and by civil liberties groups, who viewed it as an infringement on First Amendment rights.
"The media's purpose is to keep the public informed and it should be free to do so without the threat of unwarranted surveillance," Laura W. Murphy, director of the American Civil Liberties Union's Washington Legislative Office, said in a statement. "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."
Monday's report only fanned the flames, with Democrats and Republicans alike criticizing the Department of Justice. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said he was "very troubled by these allegations" and wanted to hear the government’s explanation. House Oversight Committee Chairman Darrell Issa (R-Calif.) said that Holder needed to be "held accountable for what I think is wrong" if, indeed, the authorization for the subpoena reached his desk.
White House Press Secretary Jay Carney referred questions to the Department of Justice. Nanda Chitre, the acting top spokeswoman at Justice Department headquarters, referred questions to the U.S. Attorney's office in D.C. She did not respond to a question about whether Holder signed off on the subpoena. Internal DOJ regulations require the Attorney General to sign off on subpoenaing a member of the media or their phone records.
Bill Williams, a spokesman in the D.C. U.S. Attorney's Office, which along with the U.S. Attorney’s Office in Maryland has taken the lead in investigating the leaks, said in his statement that federal prosecutors "take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations."
Regulations, Williams stated, require DOJ to make "every reasonable effort" to obtain information another way before considering subpoenaing reporter phone records. Members of the media, he said, must be notified in advance unless doing so "would pose a substantial threat" to the investigation. Williams had no further comment on whether the government attempted to negotiate with the AP.
Matthew Miller, a former top spokesman for 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."
The AP on Monday revealed that the DOJ obtained phone numbers from five reporters and an editor involved in the May 7, 2012 story: Apuzzo, Goldman, Kimberly Dozier, Eileen Sullivan, Alan Fram and Ted Bridis. Apuzzo worked in the AP's Hartford office several years ago and Goldman previously worked out of New York, two of the cities targeted by the Justice Department in addition to Washington, where the reporters are currently based. Apuzzo and Goldman were part of the AP's Pulitzer Prize-winning team that uncovered the NYPD's secret Muslim spying program and are highly regarded investigative journalists.
"From what we know, this collection was in clear violation of the law," said Nate Cardozo of the Electronic Frontier Foundation, a non-profit organization that seeks to protect individual rights in the digital world. "The DOJ's regulations prohibit subpoenas of this breadth and require that notice be given to the affected people within 90 days at the absolute outside."
Several prominent journalists have expressed concerns over the Obama administration's aggressive means of investigating unsanctioned leaks to reporters.
Jonathan Landay, a national security reporter with McClatchy newspapers, told HuffPost last month that "people who normally would meet with me, sort of in a more relaxed atmosphere, are on pins and needles" because of the crackdown on leakers. The New Yorker's Jane Mayer said at the time that "part of the problem" with regards to the government's ongoing leaks crackdown "stems from the technology revolution."
"It's a lot easier now for the government to spy on Internet and phone communication than it was in the past," Mayer said. "So, all together, I worry that the public may not be getting critical national security information about which it has a right to know."
Holder is scheduled to appear before the House Judiciary Committee on Wednesday afternoon. Rep. Judy Chu (D-Calif.) wrote on Twitter that she was expecting answers from Holder on the “monitoring” at the hearing.
UPDATE: 8 p.m. -- White House Press Secretary Jay Carney, in a statement, said:
Other than press reports, we have no knowledge of any attempt by the Justice Department to seek phone records of the AP. We are not involved in decisions made in connection with criminal investigations, as those matters are handled independently by the Justice Department. Any questions about an ongoing criminal investigation should be directed to the Department of Justice.