After conducting 550 interviews and reviewing tens of thousands of documents, Justice Department investigators looking for the person who leaked details of a foiled al Qaeda bomb plot to the Associated Press in 2012 apparently still couldn’t make the case. So the feds faced a choice: subpoena the call records for 20 telephone lines used at work and home by AP reporters or risk failing to find the leaker. Choosing to use investigative tools Justice has resisted in the past, investigators not only went with the subpoena, they did it without notifying the AP.
That decision shows three things. First, DoJ’s case against the leaker may be in trouble. Second, prosecutors are increasingly willing to intrude on media freedom. Third, George W. Bush and Barack Obama‘s post-9/11 trend of limiting media oversight and expanding executive branch secrecy is continuing apace, whether Obama and Attorney General Eric Holder admit it or not.
The records seizure was authorized by Deputy Attorney General James Cole because Holder recused himself from the case after the FBI interviewed him about the leaks, Holder said Tuesday. In a letter responding to protests from the AP, Cole said Tuesday that the department had issued the subpoena for the phone records as a last resort. Investigators had taken “all reasonable alternative investigative steps before even considering the issuance of a subpoena” for phone records, Cole wrote, and that the subpoena for the records was “drawn as narrowly as possible.”
Taking Cole at his word, the breadth of the subpoena shows how far Justice still has to go. The subpoena covers call records, but not call contents, over the telephone lines of five reporters and one editor. That suggests investigators still don’t know who received the leak, let alone the identity of the leaker. If investigators decided not to subpoena the reporters notes before going for their phone records, it further suggests the feds don’t know where to start looking; if the feds already have subpoenaed notes, it means they haven’t found what they’re looking for.
In a larger sense, the DoJ decision is the latest roll-back of post-Nixon era restraint in investigating journalists. Justice has had the legal power under the U.S. criminal code to get a warrant to subpoena journalists’ notes and their phone records for over 40 years, but have rarely used it. Since U.S. Attorney Patrick Fitzgerald successfully forced reporters to provide evidence against their sources in the Valerie Plame/Scooter Libby case (TIME Magazine was involved in that case), prosecutors have increased their willingness to go after journalists. Except in cases of espionage and international terrorism, the law requires Justice to inform the targets of monitoring after a few weeks.
Holder said the extraordinary measures were taken because the leak had endangered American lives. The AP story revealed that the U.S. had intercepted a bomb made by a dangerous al Qaeda affiliate in Yemen that had barely failed on several occasions to blow up U.S. airliners. “I’ve been a prosecutor since 1976 and I have to say that this is among — if not the most serious, it is within the top two or three most serious leaks that I’ve ever seen,” Holder said Tuesday. “It put the American people at risk, and trying to determine who was responsible for that, I think, required very aggressive action.”
Thanks to the combination of perceived danger and lowered bar for investigating journalists, the roll back of media protections seems to be accelerating. The AP investigation came after Republicans, including Senator John McCain, accused the Obama administration of leaking details of national security successes for electoral gain. In response, Attorney General Eric Holder appointed two prosecutors, one to look into the leak of details to New York Times reporter David Sanger about a U.S.-Israeli cyberattack on Iran, the other to investigate the AP about the U.S. interdiction of a terrorist bomb plot against the U.S. McCain and Lindsey Graham would have given the investigators even more power. “The recent decision of the attorney general falls far short of what is needed and is not an adequate substitute for an outside special counsel,” the Senators wrote in a letter at the time.
Though White House spokesman Jay Carney said Tuesday that President Barack Obama didn’t know anything about the DoJ investigation of the AP and that Obama believes in “balance” between freedom of the press and national security, the president has done his part to accelerate the trend. Obama came into office offering Americans a deal on secrecy. On the one hand, he promised to shrink the number of secrets created by the government, ending the problem of “overclassification” which produces so many secrets that few are well protected. At the same time, he said he would aggressively defend the secrets the government did need to keep by going after leakers and making them pay.
Obama has delivered on the crackdown–he’s prosecuted twice as many leakers as all his predecessors combined–but he hasn’t delivered on the secrecy reduction. The Information Security Oversight Office at the National Archives reported to Congress last year that in 2011, newly created original classifications were essentially flat, dropping from 2,378 in 2010 to 2,362 in 2011. At the same time, there were 92,064,862 derivative classifications decisions stemming from those and other original secrets in 2011, a rise of 20% from 2010. The ISOO said that increase in derivative classification resulted largely from changed rules that covered electronic classification.
Limits on press freedom and expansion of executive branch power and secrecy come in cycles. To judge from this week’s developments, we’re still accelerating in the direction set by George W. Bush after 9/11 towards a retrenchment of White House power and secrecy, and new limits on the media. On Tuesday a broad coalition of media organizations, including Time Inc., protested the DoJ move.