Justice Department defends decisions in secret seizure of AP phone records as criticism mounts

Nicole Lozare | Reporter's Privilege | News | May 14, 2013

Deputy Attorney General James M. Cole responded to the controversy over the Associated Press phone records subpoena today, unapologetically defending the Department of Justice's secret subpoenas for the records of more than 20 separate telephone lines assigned to the AP and its journalists in April and May 2012. In his letter, Cole defended the subpoenas and said they were appropriately narrow and while they spanned a two-month period, investigators sought records for "only a portion of that two-month period."

Cole also made it clear that investigators followed department policy, which among other things dictates that journalists' phone records can only be subpoenaed when all other ways of acquiring the information necessary in a criminal investigation have been exhausted.

"In this case, the Department undertook a comprehensive investigation, including, among other investigative steps, conducting over 550 interviews and reviewing tens of thousands of documents, before seeking the toll records at issue," Cole wrote.

In addition, Cole emphasized the gravity of harm to "all Americans" when classified information is leaked. Cole, however, assured the AP that investigators did not "seek the content" of any calls and that the records will be used only for this unspecified criminal investigation. Cole also wrote that due to the ongoing nature of the investigation, he is limited in what information he can provide.

Media organizations and lawmakers also weighed in on the controversy, publicly condemning the department for its actions.

"The scope of this action calls into question the very integrity of Department of Justice policies toward the press and its ability to balance, on its own, its police powers against the First Amendment rights of the news media and the public’s interest in reporting on all manner of government conduct, including matters touching on national security which lie at the heart of this case," the Reporters Committee for Freedom of the Press wrote in a letter to the Justice Department on behalf of more than 50 news media organizations.

The Reporters Committee also demanded the Justice Department explain why prosecutors were allowed to "overreach so egregiously in this matter" and that the department disclose if it has served any other pending news media-related subpoenas.

The investigation is believed to center on a May 7, 2012 article by the AP that disclosed details of a CIA operation in Yemen to stop an airliner bomb plot around the one-year anniversary of the death of Osama bin Laden.

The story essentially challenged the White House’s claim that it had “no credible information” of any terrorist threats timed with the death anniversary of bin Laden’s death. According to the AP, the five journalists and their editor were among the newsroom employees whose phone records were seized.

On Friday, AP’s general counsel, Laura Malone, received a letter from Ronald C. Machen Jr., the U.S. attorney for the District of Columbia appointed by Attorney General Eric Holder to lead the leaks inquiry, informing the wire service that their telephone records were subpoenaed and already handed over by telephone companies.

The AP released a lengthy story late Monday night about the subpoenas and by Tuesday morning, a number of news organizations and lawmakers had released statements criticizing the Justice Department.

The White House immediately distanced itself and denied any involvement with the Justice Department’s secret subpoena.

“Other than press reports, we have no knowledge of any attempt by the Justice Department to seek phone records of the AP,” said White House spokesman Jay Carney. “We are not involved in decisions made in connection with criminal investigations.”

But Michael Steel, spokesman for House Speaker John A. Boehner (R-Ohio), blamed the Obama administration, according to a The New York Times report.

“The First Amendment is first for a reason. If the Obama Administration is going after reporters’ phone records, they better have a damned good explanation,” Steel told the newspaper Monday.

Sonny Albarado, president of the Society of Professional Journalists, called the Justice Department’s move “shameful and outrageous” in a statement.

“This incident proves once again the need for a federal Shield Law. Prosecutors, unlike reporters, have subpoena power to compel testimony, yet lazy prosecutors often prefer to go after reporters’ notes and records rather than do the hard investigative work to dig out information without tramping on the First Amendment.”

Gary Pruitt, the president and chief executive of the worldwide wire service, fired off an angry letter to Holder's office on Monday. Cole's letter released today was a direct response to Pruitt's letter.

“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,” Pruitt wrote. “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.”