Did the Department of Justice seize months of phone records from the Associated Press because the news organization ran a story that contradicted a key White House claim in the war on terror?
AP has speculated that the Justice Department investigation was launched because of a story it ran on May 7, 2012, reporting that the CIA thwarted an attempt by an al-Qaida affiliate to blow up a U.S. airliner on the one-year anniversary of the killing of Osama bin Laden.
However, that story directly contradicted a White House claim that it had “no credible information that terrorist organizations, including al-Qaida, are plotting attacks in the U.S. to coincide with the (May 2) anniversary of bin Laden’s death.”
Administration’s finger pointing begins
Today, White House Press Secretary Jay Carney called President Obama “a strong defender” of the First Amendment and 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.”
Attorney General Eric Holder called the leak that launched the Justice Department investigation very serious while also distancing himself from any responsibility for the subpoena of AP’s phone records.
Holder said he recused himself from the beginning of the investigation to avoid a conflict of interest because he had been interviewed by the FBI on the matter. He claimed it was Deputy Attorney General James Cole who “ultimately authorized the subpoena” to conduct what AP calls a “massive and unprecedented intrusion” into its news gathering operation. According to NBC’s Pete Williams, Cole said the government move was a last-resort effort after it conducted hundreds of interviews.
Holder attempted to further distance himself from the mushrooming scandal by saying he was “not familiar with all that went into the formulation of the subpoena.”
Fox News reported House Speaker John Boehner’s office said, “They better have a damned good explanation.”
The rules published by the Justice Department require the personal approval of the attorney general to subpoena records of news organizations. It is not known whether a judge or jury signed off on the subpoena.
The Obama administration has vigorously investigated leaks of classified information and filed cases against six suspects. That’s more than all the previous administrations, combined. But the White House denied any knowledge of the investigation of AP and referred all inquiries to the Justice Department.
Holder called the incident that launched the investigation “a very, very serious leak. I’ve been a prosecutor since 1976 – and I have to say that this is among, if not the most serious, in the top two or three most serious leaks that I’ve ever seen. It put the American people at risk – and that is not hyperbole” and that finding the source of the leak “required very aggressive action.”
However, the AP said it published the story because the news organization was assured by officials that it did not pose a risk to national security.
The government seized records for more than 20 phone lines assigned to AP journalists in April and May of 2012. More than 100 journalists work in the offices where phone records were targeted. The Justice Department obtained lists of outgoing calls for both work and personal phone numbers of individual reporters and for AP in the House of Representatives press gallery and its offices in New York, Washington and Hartford, Conn. It’s unknown whether the records include incoming calls.
The story broke Monday when AP President and Chief Executive Officer Gary Pruitt sent a letter of protest to Holder saying the information the government sought and obtained was far beyond anything that a single investigation could justify.
“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 wrote.
He also demanded a return of the phone records and a destruction of all copies.
The U.S. Attorney’s office in Washington claimed federal investigators seek journalists’ phone records only after making “every reasonable effort to obtain information through alternative means.”
However, Holder said Tuesday he couldn’t explain why his department did not simply ask the AP for voluntary cooperation before executing the subpoena.
The government typically notifies news organizations in advance when it wants phone records and pursues negotiations for them. That rule may be waived if the government decides such notification might “pose a substantial threat to the integrity of the investigation,” and that is what the Justice Department claimed in a letter sent Friday notifying the AP of the investigation. The letter offered no reason for the seizure of the records.
Reaction to the phone records seizure
Outraged AP reporters told Politico the Obama administration move could harm their relationships with confidential sources.
“People are pretty mad — mad that government has not taken what we do seriously,” one reporter told Politico. “When the news broke yesterday … people were outraged and disgusted. No one was yelling and screaming, but it was like, ‘Are you kidding me!?'”
Another reporter said, “People are ticked. Everyone supports the reporters involved.”
Strong criticism of the Justice Department’s phone records seizure is coming from both the political left and right.
The American Civil Liberties Union said such a broad use of subpoenas could deter both journalists and whistleblowers.
“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,” said Laura Murphy, director of ACLU’s Washington legislative office.
Sen. Rand Paul, R-Ky., said, “The Fourth Amendment is not just a protection against unreasonable searches and seizures, it is a fundamental protection for the First Amendment and all other constitutional rights. It sets a high bar – a warrant – for the government to take actions that could chill exercise of any of those rights. We must guard it with all the vigor that we guard other constitutional protections.”
Paul, reacting to the influx of scandals plaguing the White House – from investigations into the Benghazi attack, the IRS’ admission that it has been targeting conservatives and the administration’s snooping on reporters, told Fox News’ Sean Hannity, “This sounds like a president somewhat drunk on power, not cautious about how he uses power.”
Chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vt., said in a statement, “The burden is always on the government when they go after private information, especially information regarding the press or its confidential sources. … On the face of it, I am concerned that the government may not have met that burden. I am very troubled by these allegations and want to hear the government’s explanation.”
Chairman of the investigative House Oversight and Government Reform Committee Rep Darrel Issa, R-Calif., said on CNN, “They had an obligation to look for every other way to get it before they intruded on the freedom of the press.”
House Judiciary Committee Chairman Bob Goodlatte, R-Va., vowed to ask Attorney General Eric Holder “pointed questions” on the records seizure at a Wednesday hearing.
Matt Drudge of The Drudge Report took to Twitter with a word of advice for journalists: “Warning to reporters and sources: Assume all your communications are being monitored. Time to move back to the parking garage.”
But, as for any lasting effects on the political landscape, talk-radio host Rush Limbaugh doesn’t think there will be any.
Many conservatives believe the mainstream media has been very friendly to the Obama administration, so a rift with the AP would be noteworthy. However, Rush Limbaugh thinks any split would be temporary. He asked, “Do you really think that the media is gonna end up divorcing Obama and end up opposing him over this? How’s that gonna manifest? What are they gonna do?
“Demand impeachment? … This is a lover’s spat. They’re gonna kiss and make up inside of a week.”