Obama administration aggressively sought to stop leaks to media, secretly spied on AP in April and May 2012. Tapped lines at House of Representatives, office and personal residences, confidential interviews. AG Holder said it was either that or subpoena AP reporters-Politico, 5/13/2013, Washington Post, Huffington Post

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May 13, 2013, “Why did the Obama administration spy on the Associated Press?” Politico, Jon Terbush

“The Associated Press on Monday revealed that the Department of Justice had secretly spied on AP reporters, obtaining two months’ worth of telephone records in what was most likely an attempt to crack down on internal leaks.

According to the AP, the Justice Department acquired records for more than 20 different phone lines associated with the news agency — including reporters’ cell, office, and home lines — that could affect more than 100 staffers. Calling the move a “massive and unprecedented intrusion,” AP President and Chief Executive Officer Gary Pruitt demanded that the DOJ explain why it had gone after the records. He also insisted that the government return the phone records and destroy all other copies of them.

“There can be no possible justification for such an overbroad collection of the telephone communications of the Associated Press and its reporters,” he said in a strongly worded letter to Attorney General Eric Holder. “These records potentially reveal communications with confidential sources across all of the news-gathering activities undertaken by the AP during a two-month period, provide a road map to AP‘s news-gathering operations, and disclose information about AP‘s activities and operations that the government has no conceivable right to know.”

He also accused the government of violating the news agency’s First Amendment rights, saying, “We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.”

The DOJ told the AP of the secret eavesdropping on Friday, though the department did not explain exactly why it had gone after the records, dated April and May of 2012. According to the AP, the records detail incoming and outgoing calls on reporters’ personal phones, as well as office lines in New York, Hartford, Conn., and Washington, D.C. — including the agency’s line at the House of Representatives.

The AP suggested the snooping may have been an attempt to find out who within the government leaked information about a foiled Yemeni terror plot that ran in a May 2012 AP story.”…

[Ed. note: It was later revealed that the so-called plotter was actually a US spy: “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.””] 

(continuing): “More from the Associate Press on that:

The government would not say why it sought the records. Officials have previously said in public testimony that the U.S. attorney in Washington is conducting a criminal investigation into who may have provided information contained in a May 7, 2012, AP story about a foiled terror plot. The story disclosed details of a CIA operation in Yemen that stopped an al-Qaida plot in the spring of 2012 to detonate a bomb on an airplane bound for the United States.”… 

[Ed. note: “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.

(continuing): “In testimony in February, CIA Director John Brennan noted that the FBI had questioned him about whether he wasAP‘s source, which he denied. He called the release of the information to the media about the terror plot an “unauthorized and dangerous disclosure of classified information.” [Associated Press] 

As the AP notes, prosecutors had previously asked the agency and its reporters for that information, though the news agency declined to cooperate. According to the AP, phone records for five reporters and one editor who worked on that story were among those collected by the DOJ.

In an interview with The Washington Post, a lawyer for the AP warned that the intrusion would have a chilling effect on the agency’s ability to effectively gather and report the news.

“This action is a dagger to the heart of AP‘s news-gathering activity,” lawyer David Schulz said. “Sources are not likely to talk to reporters who they know are being used as investigative tools by prosecutors. And that’s what’s happening here.”

Likewise, the American Civil Liberties Union strongly condemned the seizure as an “unacceptable abuse of power.”

“Freedom of the press is a pillar of our democracy, and that freedom often depends on confidential communications between reporters and their sources,” Ben Wizner, director of the ACLU’s Speech, Privacy and Technology Project, said in a statement.

Rep. Darrell Issa (R-Calif.), who as chairman of the House Oversight and Government Reform Committee has sparred with Holder before, most notably on the Fast and Furious gun smuggling program, promised a [charade] House inquiry into the revelation [guaranteed to be meaningless].

“They had an obligation to look for every other way to get it before they intruded on the freedom of the press,” he told CNN.

A spokesperson for the U.S. Attorney’s office in Washington defended the DOJ’s move, suggesting the department was allowed to secretly pull those records because of the ongoing nature of the criminal probe.

“We must notify the media organization in advance unless doing so would pose a substantial threat to the integrity of the investigation,” the office said, according to CNN. “Because we value the freedom of the press, we are 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.”

Matthew Miller, a former spokesman for Holder, told The Huffington Post that the DOJ’s only other option would have been to subpoena the reporters.

“This is how leaks get investigated,” he said. “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.”
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Added: May 2013 Washington Post article

May 13, 2013, “AP: Government subpoenaed journalists’ phone records,“ Washington Post, Erik Wemple 

“A word of caution to key government sources and whistleblowers: The most transparent administration ever “secretly obtained two months of telephone records of reporters and editors for The Associated Press,” according to a story in the Associated Press. The Justice Department executed the nitty-gritty here: 

“The records obtained by the Justice Department listed 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, according to attorneys for the AP.”

A release from the Associated Press notes that President and CEO Gary Pruitt has denounced the action in a May 13 letter:

“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.”“We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.” The AP’s story on the matter doesn’t state what, precisely, the Justice Department was seeking in the operation.

However, it does note that the department’s prosecutor in Washington” is conducting a criminal investigation into who may have leaked information contained in a May 7, 2012, AP story about a foiled terror plot. The story disclosed details of a CIA operation in Yemen that stopped an al Qaeda plot in the spring of 2012 to detonate a bomb on an airplane bound for the United States.” Six AP staffers who worked on that story were “among the journalists whose April-May 2012 phone records were seized by the government,” notes the AP story by Mark Sherman.”…

[Ed. note: “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.”]

(continuing): “Furthermore, news organizations “normally” get advance notice of such probes by the government. That didn’t happen here. As the AP story states, the government “cited an exemption…that holds that prior notification can be waived if such notice, in the exemption’s wording, might ‘pose a substantial threat to the integrity of the investigation.’”

In an interview with the Erik Wemple Blog, David Schulz, an attorney with Levine Sullivan Koch and Schulz who is representing the AP, said of the government’s action: “It’s outrageous…This action is a dagger to the heart of AP’s newsgathering activity. Sources are not likely to talk to reporters who they know are being used as investigative tools by prosecutors,” says Schulz. “And that’s what’s happening here.”

Like the AP, Schulz knows a limited amount about the Justice Department’s actions in this case. He got the notice from the Justice Department last Friday. Another lawyer at his firm attempted to reach out to an assistant U.S. attorney to get more details on the matter, but the prosecutor wouldn’t go beyond the information in the Justice Department’s letter to the AP. 

Federal regulations restrict the government’s ability to corral the phone records of news organizations. The curbs, says Schulz, stem from the Watergate era and include a number of valuable protections for reporting enterprises, such as: the feds are required to try “alternative sources before considering issuing a subpoena to a member of the news media”; also: “Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated.”; the sign-off of the attorney general is required. 

However, the rules also allow this loophole:  

“Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought.” 

See the regulations here. 

After if found that its phone records were in the hands of the federal government, the AP responded that it wanted them “returned and destroyed,” says Schulz, or, at a minimum, “segregated and not allowed [to be used] for any purpose.” 

Those are fine and reasonable requests, but they may go nowhere. So AP and Co. is appealing to the public. “We’re assessing what our options are and one option is to try to let people know what happened and try to get the word out,” says Schulz. “This should be disturbing to everyone.””

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Comment: Yes, it's "disturbing." Therefore, what?
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Added: May 2013 Huffington Post article

 

May 13, 2013, “AP Phone Records Seized By Justice Department As War On Leaks Continues,“ Huffington Post, Michael Calderone, Sam Stein, and Ryan J. Reilly, 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.””

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Added: May 2013 CNN article

.May 14, 2013, “AP blasts feds for phone records search,“ CNN, Matt Smith and Joe Johns, CNN

“The Justice Department secretly collected two months of telephone records for reporters and editors at The Associated Press, the news service disclosed Monday in an outraged letter to Attorney General Eric Holder. 

The records included calls from several AP bureaus and the personal phone lines of several staffers, AP President Gary Pruitt wrote. Pruitt called the subpoenas a “massive and unprecedented intrusion” into its reporting. 

“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,” wrote Pruitt, the news agency’s CEO.

The AP reported that the government has not said why it wanted the records. But it noted that U.S. officials have said they were probing how details of a foiled bomb plot that targeted a U.S.-bound aircraft leaked in May 2012. The news agency said records from five reporters and an editor who worked on a story about the plot were among those collected, but it said none of the information the government has shared with it suggested agents listened in on any reporters’ calls.”… 

[Ed. note: “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.”]…

(continuing): “CNN legal analyst Jeffrey Toobin said the Obama administration “has been incredibly aggressive” about prosecuting leakers, and there’s no privilege in federal law that allows reporters to protect their sources. But he said past administrations have avoided going that far. 

“I have never heard of a subpoena this broad,” Toobin said. “It’s legal, as far as I can tell. The administration isn’t violating the First Amendment. But they are certainly doing more than has ever been done before in pursuing the private information of journalists. And we’ll see if there’s any political check on them, because there doesn’t appear to be any legal check on what they’re doing.” 

The White House was unaware of the subpoenas, spokesman Jay Carney told reporters Monday night. 

“We are not involved in decisions made in connection with criminal investigations, as those matters are handled independently by the Justice Department,” Carney said. 

Holder announced in June 2012 that he had assigned two U.S. attorneys to lead investigations into the possible leaking of state secrets, and members of Congress have complained about disclosures of electronic warfare campaigns against Iran, U.S. drone attacks overseas and Obama’s personal involvement in “kill lists” of militants in Yemen and Pakistan. 

But Pruitt wrote that most of the records collected from the AP “can have no plausible connection to any ongoing investigation,” and the American Civil Liberties Union called on the Justice Department to explain its actions.”…

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