Secret Subpoena Used by Justice Department to Obtain AP Phone Records

May 13, 2013 7:48 PM

By Michael Isikoff
National Investigative Correspondent, NBC News

WASHINGTON -- The Justice Department used a secret subpoena to obtain the phone records for Associated Press reporters without notifying the news organization, a senior department official tells NBC News, saying the step was necessary to avoid "a substantial threat to the integrity" of an ongoing leak investigation.

The seizure of the phone records, disclosed earlier Monday by AP President and CEO Gary Pruitt, is the latest move in a series of high profile and controversial investigations of leaks of classified information by the Justice Department. In a letter of protest to Attorney General Eric Holder, Pruitt called said obtaining more than two months of AP phone records on 20 separate telephone lines without prior notice was a "massive and unprecedented intrusion" into news-gathering operations.

It also drew a swift rebuke Monday from members of Congress and freedom of the press watchdogs, one of whom called the move "Nixonian."

Ronald C. Machen, Jr., the U.S. attorney in Washington, D.C., revealed in a letter to the AP on Friday that federal prosecutors obtained the records. The letter did not give a reason for obtaining the records, but Machen is conducting an investigation into the leak of classified information about a foiled terror plot in Yemen last year. An AP story last spring reported details of a CIA operation in Yemen that stopped an Al Qaeda plot to detonate a bomb on an airplane bound for the United States.

In his letter to Holder, Pruitt said the seized phone records were from early 2012 and included phone lines for AP bureaus in New York, Washington DC, Hartford, Connecticut and the AP line at the House of Representatives. He said the records seized also included those from the home phones and cell phones of individual journalists.

"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 said.

Holder last June appointed Machen to conduct the investigation of the Yemen terror plot leak and Rod Rosenstein, the U.S. attorney in Maryland, to oversee a separate probe into the leak of U.S. government efforts to use the Stuxnet computer virus to thwart the Iranian nuclear program. In later Senate testimony, Holder said that he and FBI director Robert Mueller had both been interviewed by FBI agents as part of the investigations because they had prior knowledge of the information that was leaked. (Under Justice regulations, any subpoena for news media phone records requires the "express authorization" of the attorney general. But a Justice Department spokeswoman did not respond Monday night when asked whether the attorney general had recused himself in 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.”

The regulations cited by Miller state that subpoenas for the news media in criminal cases should be done only when there are “reasonable grounds to believe … that a crime has occurred” and that the records sought are “essential to a successful investigation.” They also state that subpoenas should, wherever possible, “be directed at material information regarding a limited subject matter and “should cover a reasonably limited period of time and … avoid requiring production of a large volume of unpublished material.”

Since President Barack Obama took office, the Justice Department has aggressively pursued leak investigation and brought more criminal prosecutions – six in five years – than any previous administration. Those cases, which also have been sharply criticized by press groups, have also targeted reporters’ phone records: James Risen, a national security reporter for the New York Times, had his phone, credit card and bank records subpoenaed as part of a Justice Department prosecution of a former CIA officer accused of leaking classified information on Iran’s nuclear program to him.

But critics say the extensive nature of the subpoena for the AP phone records goes far beyond what was seen in earlier cases.

Rep. Darrell Issa, R-Calif., and chairman of the House Oversight and Government Reform Committee, vowed to investigate.

"This is obviously disturbing," he said. Coming in the wake of other disclosures about the administration’s response to the attack on the U.S. consulate in Benghazi, Libya, and the IRS’s targeting of conservative nonprofit groups, he said it showed "top Obama administration officials increasingly see themselves as above the law and emboldened by the belief that they don't have to answer to anyone."

Sen. Patrick Leahy, D-Vt., and chairman of the Senate Judiciary Committee, said he wanted to know more about the justification for the secret subpoena.

"The burden is always on the government when they go after private information -- especially information regarding the press or its confidential sources,” he said. “… 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."

Anti-secrecy watchdogs also criticized the move.

"I've never heard of a dragnet collection effort against a media organization like this," said Stephen Aftergood, who tracks secrecy issues for the Federation of American Scientists. "This was not a targeted monitoring of an individual reporter. It's a sweeping collection of an entire bureau's communications."

"The Justice Department’s seizure of the Associated Press’ phone records is Nixonian," said Danielle Brian, executive director of the Project on Government Oversight, a group that advocates on behalf of whistleblowers. "The American public deserves a full accounting of why and how this could happen."

NBC News' Capitol Hill Correspondent Kelly O'Donnell contributed to this report.


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