Justice Department Wants Us to Know it Values Freedom of the Press While Grabbing Phone Records

Did it really have no other way to track down a leaker?


Here is the Department of Justice's boilerplate answer to the heated response that the department had secretly gathered hundreds of phone records from Associated Press reporters and editors over a two month period in 2012 and finally informed the news agency a year later:

Replace the olive branch with a fishing pole maybe?
Source: Department of Justice

We 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. Those regulations require us to make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media. We must notify the media organization in advance unless doing so would pose a substantial threat to the integrity of the investigation. 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.

Some thoughts on this:

  • The story the Associated Press believes inspired the search (the DOJ has thus far declined to state what they were looking for) detailed a CIA operation in May 2012 to stop a terrorism plot in Yemen scheduled to coincide with the anniversary of Osama bin Laden's death. The AP actually agreed to hold the story for a time due to concerns of national security. Given the Obama Administration's now-infamous (in media circles, anyway) reputation for going after leakers, it seems unlikely that neither the leaker nor the AP would have been surprised by the subpoena. But claiming a threat to the integrity of the investigation allowed the DOJ to avoid a battle with the AP, which like most news agencies, might have tried to fight the subpoena if at all possible. As slippery slopes go, this one is pretty dangerous — claiming secrecy not to protect the investigation but rather to avoid resistance.
  • A fishing expedition like this, untold numbers of call records from 20 different phone lines at various offices, should make anybody suspicious of the claim that the DOJ made a "reasonable" effort to get the information through other means. Did they even have any likely suspects for a government leaker at this point? If so, wouldn't a subpoena on his or her (or their) records been more efficient to determine who had been in regular contact with the Associated Press reporters?
  • The overbroad nature of the records search is a big concern, even if the secretive administration of the subpoena is not a violation. The Electronic Frontier Foundation noted that both the delay in informing the AP and the ill-defined boundaries of the request are likely violations of government regulations:

The widespread collection of information, as well as the apparent delay in notifying AP, both appear to be yet another violation the government's own regulations, 28 C.F.R. sec. 50.10. In 2010, the DOJ Inspector General reported on three other violation, involving the Washington Post and New York Times. The regulations require that, "wherever possible" subpoenas of records of the news media should be "directed at material information regarding a limited subject matter, should cover a reasonably limited period of time and should avoid requiring production of a large volume of unpublished material." 

  • That the DOJ even sent a letter at all is a sign that the agency thinks its behavior is completely on the up-and-up, which may be the scariest discovery about the scandal.

The White House's official statement was to say that they know nothing about any efforts to get AP phone records and are not involved with DOJ criminal investigations. Given that the Associated Press reported that the White House urged the AP to continue holding the Yemen story until the administration could make an announcement, they're going to have a tough time claiming ignorance on this one.